The Plaza East Trilogy: Not a Nursery Rhyme, But Scary Warfare
“If I had a world of my own, everything would be nonsense. Nothing would be what it is, because everything would be what it isn’t. And contrary wise, what is, it wouldn’t be. And what it wouldn’t be, it would. You see?”
***
“It would be so nice if something made sense for a change.”1
Hurricanes as just nursery rhymes? After hurricane winds calm, the battle is over who pays what to whom, and who must repair the physical damage. The battle becomes more intense and the outcome less certain when the payer is an insurer and the damage is to a condominium.
The efficient reconstruction of casualty damaged condominiums is a matter of great public interest. Of course, if you prefer to emulate the Mad Hatter, then you can pretend as we did during the 1970s and 1980s that Florida is immune from casualties, and flip to the next article.
The Battlefield
The condominium context, the broadest conflict in Florida, involves over 22,000 associations, nearly 1,400,000 individual units,2 and countless owners, tenants, and lenders. In many condominiums a three-way battle pits insurers against condominium associations against condominium unit owners.
The battle is fought over two competing duties: the duty to insure property and the duty to repair property. Usually, identifying who has the duty to repair is easy. Similarly, usually the person who must repair has the duty to insure. Just as Alice discovered in Wonderland, what is usual in condominium law is frequently the unusual.
Between competing duties of insuring and repairing, the “no man’s land” of the battlefield, is the real issue: Who is responsible to fund casualty loss repair expenses not funded by insurance?3 Usually the amount not funded is the result of the insurance policy deductible. If the issue is ignored, then condominium unit owners and their condominium associations will not have sufficient funds to repair casualty losses, endangering the owners’ quality of life and investments, and undermining lenders’ security.
This article analyzes the disconnect between the two duties, including the statutory foundation for condominium insurance coverage, contractual duties of condominium unit owners and condominium associations stated in “condominium documents,”4 and the Plaza East trilogy interpretation of the statutory duties which disregarded contractual duties. Last but not least, unlike the Mad Hatter, this article will suggest a path out of “Wonderland” to a logical reality.
Staggering dollar amounts compel this analysis. Nearly every casualty insurance policy has a deductible. As deductibles increase from small fixed dollar amounts to deceptively small percentages of policy value, the impact upon condominiums is astronomical. A deductible calculated by a percentage of the policy value, especially when units’ insured values have increased, creates unfathomable insurance proceeds shortfalls when repairs must commence.
Though Florida homeowners’ association communities are not governed by the Florida Condominium Act5 and are not addressed in this article, many are becoming more akin to condominiums. Therefore, Florida practitioners must anticipate that insurance issues addressed here will be raised in the homeowners’ association context.
Risk Allocation Factors
History magnifies the condominium insurance battle through four distinct lenses, or factors. The first factor is that unit owners, usually neighbors, are the decisionmakers for their condominium association after the developer departs the community. Unfortunately, few owners are aware of how their association is governed, and fewer volunteer to serve their association. Nearly all association directors serve without compensation, each paying the same assessments as other owners.
The second factor is the legislature’s numerous amendments to the Florida Condominium Act changing what portions of a condominium are insured and by whom. Usually insurance law changes are driven by insurers seeking to reallocate risks.
The third factor is the contractual relationship6 between condominium unit owners and their condominium association created by developer-crafted condominium documents7 (hopefully, but not always, drafted by knowledgeable Florida counsel). In theory, the marketplace drives developers to allocate risk and expenses between unit owners and condominium associations. While unit purchasers constitute the market when a condominium is created, and purchasers must receive condominium documents to review and understand within a 15-day right of recession period,8 few purchasers read beyond the title page and fewer understand the documents. Therefore, in reality, the project lender mandates how casualty risks and insurance costs are allocated.
Add to the usual brew a curiously acidic fourth factor: small groups of extremely vocal unit owners, highly dissatisfied with, and suspicious of, association governance, who frequently vilify volunteer directors and constantly barrage legislators. Directors, after volunteering their time and energy to the community, have little extra time to advocate the “other side”; thus, legislators rarely hear from the directors charged with making on-the-spot decisions.
The Condominium Act Shifting with Time
The Florida Legislature sought the impossible: to accommodate all competing interests, including reducing premiums, reducing risks, and protecting owners as well as lenders. In this quixotic quest, extensive duties were placed upon associations to obtain, and upon insurers to provide, broad insurance coverage.9 Interestingly, the condominium act originally did not expressly regulate insurance.10 Not until 1979, when the condominium act was restructured, were associations charged with insuring not only a condominium’s common elements, but also insuring units.11
Insurer complaints resulted in exceptions to condominium casualty insurance coverage to reduce association premium expenses. In 1986, wall and floor coverings located in a unit were excepted from association coverage.12 In 1992, most nonstructural items in a unit, including appliances, were excepted.13 However, these risks did not just go away; the risks were shifted to unit owners, increasing unit owner premiums.
Then Hurricane Andrew blew through south Florida and through casualty insurance. The legislature’s effort to further reduce premiums led to further risk reallocation and recognition that casualty risks in condominiums were unlike casualty risks in single family dwellings. A single family dwelling owner could be treated like an island, entirely of itself; however, unit owners in a condominium could not be an island because unit owners must rely upon each other to have funds to rebuild.14 Nevertheless, many owners still did not obtain insurance, which in turn, endangered the viability of their condominiums.
A condominium association’s minimum duty to insure was changed. Eventually, the act read:
Every hazard insurance policy issued or renewed on or after January 1, 2004, to protect the condominium shall provide primary coverage for:
1. All portions of the condominium property located outside the units;
2. The condominium property located inside the units as such property was initially installed, or replacements thereof of like kind and quality and in accordance with the original plans and specifications or, if the original plans and specifications are not available, as they existed at the time the unit was initially conveyed; and
3. All portions of the condominium property for which the declaration of condominium requires coverage by the association.
Anything to the contrary notwithstanding, the terms “condominium property,” “building,” “improvements,” “insurable improvements,” “common elements,” “association property,” or any other term found in the declaration of condominium which defines the scope of property or casualty insurance that a condominium association must obtain shall exclude all floor, wall, and ceiling coverings, electrical fixtures, appliances, air conditioner or heating equipment, 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 a unit and serve only one unit and all air conditioning compressors that service only an individual unit, whether or not located within the unit boundaries. The foregoing is intended to establish the property or casualty insuring responsibilities of the association and those of the individual unit owner and do not serve to broaden or extend the perils of coverage afforded by any insurance contract provided to the individual unit owner. Beginning January 1, 2004, the association shall have the authority to amend the declaration of condominium, without regard to any requirement for mortgagee approval of amendments affecting insurance requirements, to conform the declaration of condominium to the coverage requirements of this section.15
Thus, the legislature provided a concise, three-part test defining what a condominium association must insure and then listed exclusions to mandatory coverage. Unfortunately, the extended duty to insure did not include a corresponding extended duty to repair insured items.
Hurricane Andrew brought another significant change to insurance coverage. Unit owners now had a duty to obtain insurance coverage: “All real or personal property located within the boundaries of the unit owner’s unit which is excluded from the coverage to be provided by the association as set forth in paragraph (b) shall be insured by the individual unit owner.”16 Unfortunately, most unit owners overlooked their duty to insure. The gap between association coverage and unit owner coverage was exacerbated because the duty to insure was not equal to the duty to repair.
This gap was increased in condominiums with many retirees because retirees’ units often do not have mortgages. Without a lender forcing those unit owners to insure, few of those unit owners had insurance when the hurricanes of 200417 and 200518 hit almost every Florida county. This created a further disconnect between the duty to insure and repair.
Obviously, each of the competing interests cannot be accommodated under present market conditions. The legislature’s current stated goal is:
In order to protect the safety, health, and welfare of the people of the State of Florida and to ensure consistency in the provision of insurance coverage to condominiums and their unit owners, paragraphs (b) and (c) are deemed to apply to every condominium in the state, regardless of the date of its declaration of condominium. It is the intent of the [l]egislature to encourage lower or stable insurance premiums for associations described in this section.19
At the same time, the legislature finally acknowledged that full replacement value insurance coverage was a practical impossibility. “Adequate insurance, regardless of any requirement in the declaration of condominium for coverage by the association for ‘full insurable value,’ ‘replacement cost,’ or the like, may include reasonable deductibles as determined by the board.”20
Setting the stage for the Plaza East trilogy, the legislature did not mandate how coverage insufficiencies created by deductibles were to be addressed. Instead, the legislature continued to allow insufficiencies to be addressed by the marketplace, through developers, and their counsel drafting condominium documents.
The Missing Link: Repairs
Two significant issues, not apparent before the 2004 losses, became obvious because of the increased value of units and costs to repair and the shift in coverage duties: Who has a duty to repair damaged property; and how to fund repairs when repair expenses exceeded insurance benefits? The condominium act addresses the need to repair common elements21 and creates the duty to insure; but the act does not address who repairs those portions of an individual unit which are insured by the condominium association.
Unit owner repair duties and corresponding duties to fund repairs usually are delineated in a declaration of condominium. Most declarations are direct: Everything within a unit is the unit owner’s duty to repair with narrow exceptions for items serving more than one unit, such as structural walls and utility mains. Thus, an owner is usually responsible to repair interior nonstructural load bearing walls. Declaration drafters believed that items utilized by a particular unit are regulated by that unit’s owner; thus, the risk of damage should follow with repair expenses allocated to that owner.
Contrast the duty to repair with the duty to insure. The duty to insure most items installed by the developer inside a unit belongs to the condominium association.22 In the wake of the 2004 and 2005 hurricane season, unit owners suddenly became aware that though an owner has a duty to repair an item, such as an interior wall, the condominium association may have the duty to insure the item; thus, the disconnect of who pays when the insurance policy does not provide sufficient funds for necessary repairs. Many associations, seeking to avoid increasing assessments, bargain for lower insurance premiums by accepting larger deductibles; however, there is the rare association that budgets for casualty loss expenses not paid by insurance.
The shortfall of insurance proceeds to pay for unit damage shifted the battle to the allocation of repair expenses not reimbursed because of the deductible. Many declarations of condominium anticipated such a situation. Generally, declarations provide that if insurance proceeds are not sufficient to repair all the damage, insurance proceeds would first be allocated to repair common elements. This priority helps to ensure that facilities serving all owners are repaired.
The priority, first allocating insurance proceeds to repair common elements, usually means that the remaining proceeds are insufficient to repair damaged units.23 Many declarations of condominium provide that insurance proceeds remaining after common element repairs are paid are to be distributed on a pro rata basis among the damaged units, allocating the deductible shortfall only to owners of damaged units. Unit owners who avoided damage either by advanced preparation, such as installation of hurricane shutters, or by plain luck, bore no burden.
Enter the Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation. The legislature generally delegated to the division regulatory functions concerning Florida condominiums.24 These functions include, as limited by Florida’s Administrative Procedure Act,25 the promulgation of rules to implement the legislature’s purposes26 and publishing information concerning declaratory statements.27
In the first of three declaratory statements now referred to as the “Plaza East trilogy,” regulators sought to change the law and declarations of condominium. This goal was understandable in the political climate in which owners were fearful, if not scared, and there was a desire to assist; however, the adage that bad facts make bad law certainly could apply to the result.
The Plaza East Trilogy
The hurricanes of 2004 and 2005 resulted in large numbers of condominium associations facing repair bills with insufficient insurance proceeds. In large part, the insufficiencies were due to insurance policy deductibles. Insufficiencies were exacerbated when older condominium associations did not obtain “code and ordinance” coverage to pay for changes in building requirements.28 Thus, the battleground shifted from who insures to the battleground of who pays for repairs.
The Florida Administrative Procedures Act authorizes state agencies such as the Department of Business and Professional Regulation to issue declaratory statements interpreting laws within their purview.29 Three declaratory statements, collectively known as the “Plaza East trilogy” were issued in less than a year’s time: In re Petition for Declaratory Statement: Plaza East Association, Inc., DS 2005-055, BPR 2005-00239 (January 13, 2006); In re Petition for Declaratory Statement: Molokai Villas Condominium Association, Inc., DS 2006-028, BPR 2006-06542 (September 7, 2006); and In re Petition for Declaratory Statement: Costa del Sol Association, Inc., DS 2006-024, BPR 2006-08898 (November 29, 2006).
Plaza East, the Decision
The first decision, the trilogies’ namesake, is Plaza East. The issue defined for consideration was stated in the decision as:
whether Plaza East Association, Inc., which is required to insure the condominium property located outside the units, the property located inside the units as initially installed, and all portions of the condominium property requiring coverage by the association under section 718.111(11)(a), Florida Statutes (2003), may pass on to the unit owner the cost of repairing those items that would have otherwise been paid for by the association’s insurance policy but for the application of the deductible or amounts in excess of the coverage limits, notwithstanding provisions in the declaration defining the condominium property as part of a unit with the cost of repairs to be paid for by the unit owner.
In summary, the department declared that if a particular item in a unit was to be insured by the Plaza East Association, and if after a casualty loss insurance proceeds were insufficient to fund the expense to repair the item, then the association was barred from assessing that unit owner for the expense, regardless of the declaration of condominium’s provisions allocating the expense of the loss. Instead, the department ruled that the casualty loss expense not paid by insurance was to be recovered by the Plaza East Association as a common expense assessed against all unit owners in the condominium.
Plaza East Deconstructed
The justification underlying the declaratory statement appears rational on its face; however, upon further analysis, the decision was unprecedented in its sweep, invalidating tens of thousands of insurance provisions in declarations of condominium. First, there is a question of whether the department has jurisdiction to issue the declaratory statement concerning the allocation of repair expenses. Despite repeated opportunities, the legislature has not delegated to the department rulemaking authority concerning insurance.
The legislature limited the department’s authority by expressly directing the Office of Insurance Regulation of the Department of Financial Services to undertake recommendations “or any other information” pertaining to condominium association insurance.30 The legislature required the Office of Insurance Regulation to report to the legislature, not to the division.31 If it was the legislature’s intent to have the department regulate insurance, then such would have been stated by the legislature.
Second, there is the limited purpose of the declaratory statement process. The Florida Administrative Procedure Act limits the purpose of declaratory statements to “an agency’s opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.”32 A declaratory statement may not be utilized to set forth a policy that has statewide application,33 which restricts the department’s condominium regulatory authority.34 Nevertheless, the division has sought to use Plaza East as precedent for statewide application.35
Third, the decision disregards the legislature’s direction that common expenses are to be defined in a declaration of condominium.36 The legislature has not changed this methodology. Notably, though the department commenced formal rulemaking in 2006, the department did not adopt a rule nor make a recommendation to the legislature regarding insurance.
Fourth, the legislature has not chosen condominium associations to be the insurer of last resort. As noted above, unit owners are required to obtain coverage for items their associations do not insure. Further, the legislature recognized the need for deductibles without placing a duty to fund upon associations.
Fifth, despite a condominium association’s best efforts, some items cannot be insured. For example, fences and accessory items frequently are not insurable. Thus, while an association may have a statutory duty to insure,37 impossibility normally would exclude performance.38
Sixth, and not least, the policy discourages loss prevention. If a unit owner knows that losses to the unit will be paid by his or her condominium association, then why buy or repair hurricane shutters or replace decrepit 1960s windows with wind resistant windows?
The Progeny
The Molokai Villas decision followed in the footsteps of Plaza East. Even though a declaratory statement may not be used for policy decisions and may be used only for decisions that have limited impact, the department’s first substantive “conclusion of law” was a citation to Plaza East. The department sought to differentiate Plaza East; however, the matters of differentiation, slightly different provisions in declarations of condominium and different areas of damage, screens and glass doors outside of units but installed by the developer in Plaza East, as opposed to separate buildings in Molokai, are nominal distinctions without practical meaning in context. Critical portions of each decision are identical.
The third decision in the trilogy, Costa del Sol, arose in the same administrative context, but addressed a different scenario. At issue was who paid to repair casualty damage to improvements such as trellises, Jacuzzis®, and screen enclosures. If installed by the developer, each item was an upgrade, not uniformly installed, and each item was the individual unit owner’s maintenance duty.
Again in Costa del Sol, the department cited as general authority Plaza East. Critical portions duplicate the first two declaratory statements. Further, Costa del Sol appears to contradict the division arbitration decisions, holding that damage to the unit owner-installed upgrades was the owner’s responsibility to repair,39 even if the damage resulted from association maintenance.40
Adding to the situation is Dept of Business and Regulation v. Fountains South Cd’m., Ass’n, Inc., DOAH Recommended Order, Case No. 06-3757 (Jan. 10, 2008). The DOAH hearing officer found that Plaza East is an unwritten rule and that the division acted upon incorrect premises.
The Current Situation
The current situation is untenable. A condominium association has a statutory duty to insure and then, by implication, to receive insurance funds for casualty damaged items; however, the condominium’s declaration normally provides that the items inside a unit are the unit owner’s duty to repair. Unit owners have a duty to insure, but do not have the ability to obtain, as a practical matter, coverage for items that a condominium association has a duty to insure. Association deductibles require significant special assessments, levied when many owners are least able to pay or even contemplate additional expenses. The department seeks to administer a law that did not anticipate these issues converging at once.
From Wonderland to Reality: An Escape and a Solution
It is this author’s view that it is time is for the legislature to act. Initially, the legislature is recommended to start simply by clarifying that condominiums are a legislative creation and, thus, legislation supercedes a declaration of condominium.41 The next step would align insurance duties and repair duties, provided that if an association insured an item, then that association would repair the item, regardless of the amount of insurance proceeds. Under this method, an association can confirm that work is undertaken properly and that warranties are obtained.
The shortfall of funds must be addressed. As condominium unit owners are frequently geographically disbursed, and unit owners depend on association repairs, the legislature is urged to authorize the community’s elected group — the association’s board of directors — to levy a special assessment to immediately begin construction when there has been a substantial casualty, such as a National Oceanic Atmospheric Administration named storm. Years after the 2004 and 2005 hurricanes, condominiums without board of directors’ authority to levy special assessments are stagnating.
The legislature is urged to authorize directors to authorize, upon specific factual findings, the use of reserve funds for casualty repairs. Reserve funds are now restricted for repairs or replacement of a specified condominium component unless a unit owner approval is obtained.42 Allowing directors to expend reserves for casualties reduces the need to burden unit owners with special assessments and borrowing.
Planning responsibly for the future, the legislature should allow condominium associations to create a new type of reserve fund to cover the amount of insurance deductibles. Such a fund is not currently expressly authorized by the condominium act because the fund would not be for a specified component. The funding of a deductible reserve could be tied to increases in deductible amounts.
Exceptions to the suggested legislation are a practical necessity, as with most laws of broad application. First, an exception should allow a condominium association to opt out of the statutory provisions if the declaration of condominium requires the association to insure and repair all structural improvements, and requires either the association or the unit owner to insure and repair improvements that constitute unit boundaries. This exception would allow the basic components of a condominium to be rebuilt after a casualty with the association funding only to the extent funds are received from the insurer. A nondeveloper unit owner vote authorizing the exception would prevent “default” developer-drafted provisions from overriding legislative policy.
Concerning loss prevention, the legislature should encourage preventative maintenance and discourage negligence. If a unit owner had a duty to install hurricane shutters or to maintain failing windows and doors and breached that duty, then that unit owner, not the association, should be liable to repair casualty damage caused by the breach. This concept follows traditional common law strictures, especially in the community context by analogy to partnership law, creating a duty upon each unit owner to prevent losses to neighboring unit owners.
The Florida Bar is taking active and substantial efforts to implement a solution. The Real Property and Probate, Trust Law Section’s Condominium and Planned Development Committee has examined these issues in detail, studying at length many alternative proposals. The committee’s recommended text can be read on the RPPTL section’s Web site.43
Pundits may coin the result as “Plaza East lite,” because condominium associations still have to pay the insurance proceeds shortfall. However, instead of just adopting the division’s conclusions, the proposed coordination of the duty to repair provides a logical basis for decisionmaking. Further, such a fundamental decision is made by the citizen’s representatives, not by policymaking which was not authorized by the legislature nor adopted pursuant to the Administrative Procedures Act.
It will be up to the legislature to address these issues.44
1 Lewis A. Carroll, Alice’s Adventures in Wonderland (1872), interpreted by Walt Disney, Alice in Wonderland (1951).
2 Division of Florida Land Sales, Condominiums, and Mobile Homes of the Department of Business and Professional Regulation, County Summary Data, spreadsheet cells E2-E58 (January 5, 2008), www.myflorida.com/dbpr/sto/file_download/lsc_download.shtml.
3 The Dutchess stated, “And the moral of that is, ‘The more there is of mine, the less there is of yours.’” Lewis Carroll, Alice in Wonderland, Ch. 9, “The Mock Turtle’s Story” (1897).
4 Though the term “condominium documents” is not defined by the Florida Condominium Act, a similar term, “governing documents” is defined in the Florida Homeowners’ Association Act. Compare Fla. Stat. §718.103 with Fla. Stat. §720.103(8). Generally “condominium documents” refer to three related items: articles of incorporation which create the association, Fla. Stat. §718.103(2); the association’s bylaws which provide corporate procedures, Fla. Stat. §617.0206; and the declaration of condominium which creates the condominium and covenants concerning the use of the condominium, Fla. Stat. §718.103(15), §718.104. The term, in context, may include the association’s rules and regulations. See Beachwood Villas Ass’n, Inc. v. Poor, 448 So. 2d 1143 (Fla. 4th D.C.A. 1984).
5 Compare the Florida Condominium Act, Fla. Stat. Ch. 718 with the Florida Homeowners’ Association Act, Fla. Stat. Ch. 720.
6 See Pepe v. Whispering Sands Cd’m Ass’n, Inc., 351 So. 2d 755, 757-58 (Fla. 2d D.C.A. 1977).
7 That developers have interests different from unit owners, developers seeking to sell and owners seeking to occupy, has been implicitly recognized when courts determined that a developer’s failure to enforce restrictions should not bar a unit owner-controlled association’s efforts to enforce the same restrictions. Ladner v. Plaza del Prado Cd’m. Ass’n., Inc., 423 So. 2d 927 (Fla. 3d D.C.A. 1983).
8 Fla. Stat. §718.503(1)(a)1 (2007). For nondeveloper sales, the recession period is three days. Fla. Stat. §718.503(2)(c)2 (2007).
9 A condominium is composed of property owed in two distinct manners. Each unit is owned fee simple by a unit owner. Fla. Stat. §718.103(13). Common elements are all areas of a condominium outside of a unit which are owned jointly, severally, and generally indivisibly by all the owners of units in the condominium as appurtenances to the units. Fla. Stat. §718.103(8), §718.106(2).
10 Fla. Stat. Ch. 1963-35.
11 Fla. Stat. §718.111(9) (1979); Fla. Stat. Ch. 1979-314.
12 Fla. Stat. §718..111(9)(b) (1984 Supp.); Fla. Stat. Ch. 1984-368, §5.
13 Fla. Stat. Ch. 1992-49, §2.
14 Apologies to John Donne.
15 Fla. Stat. Ch. 2003-14, §4.
16 Fla. Stat. §718.l11(11)(c) (2003).
17 Bonnie, Charley, Frances, Ivan, and Jeanne. N.O.A.A. Historical Hurricane Tracker Viewer, maps.csc.noaa.gov/hurricanes/viewer.html.
18 Arlene, Cindy, Dennis, Katrina, Ophelia, Rita, Tammy, and Wilma. N.O.A.A. Historical Hurricane Tracker Viewer, maps.csc.noaa.gov/hurricanes/viewer.html.
19 Fla. Stat. §718.111(11)(a) (2007).
20 Fla. Stat. §718.l11(11)(a) (2003).
21 Fla. Stat. §718.113(1) (2007).
22 Fla. Stat. §718.111(11)(b)1 (2007). See note 15 listing exceptions.
23 The insufficiency of association insurance proceeds is more apparent in older condominiums when insurers assert that without specific “code and ordinance” insurance does not pay the expense of building to current code, only reimbursing to code at the time the condominium was permitted. Whether this assertion is valid when coverage is to be for “full insurable value” is an issue for another article.
24 Fla. Stat. §718.501(1) (2007).
25 See Fla. Stat. §120.536 (2007).
26 Fla. Stat. §718.501(1)(f) (2007).
27 Fla. Stat. §718.501(1)(g) (2007).
28 See note 23.
29 Fla. Stat. §120.565(1) (2007). See Suntide Cd’m Ass’n. v. Division of Florida Land Sales, 504 So. 2d 1343 (Fla. 1st D.C.A. 1987).
30 Fla. Stat. §718.111(11) (2003).
31 Fla. Stat. Ch. 14, §4 (2003).
32 Fla. Stat. §120.565(1) (2006).
33 Chiles v. Department of State, Div. of Elections, 711 So. 2d 151, 154 (Fla. 1st D.C.A. 1998), approved, Florida Department of Business and Professional Regulation, Division of Parimutuel Wagering v. Investment Corp. of Palm Beach, 77 So. 2d 374, 375 (Fla. 1999).
34 Lennar Homes, Inc. v. Dep’t of Bus. & Prof’l Regulation, Div. of Fla. Land Sales, Condos. & Mobile Homes, 888 So. 2d 50, 53 (Fla. 1st D.C.A. 2004).
35 Dept of Business and Regulation v. Fountains South Cd’m., Ass’n, Inc., DOAH Recommended Order, Case No. 06-3757 (Jan. 10, 2008).
36 Fla. Stat. §718.115(1)(a) (2006).
37 Fla. Stat. §718.111(11) (2006).
38 See Rupp v. Dep’t of Health, 963 So. 2d 790, 793 (Fla. 3d D.C.A. 2007), citing Shevin v. International Inventors, Inc., 353 So. 2d 89, 92 (Fla. 1977).
39 Molokai Villas Condo. Assn., Inc. v. Symes, Case No. 00-1320 (Pine / Summary Final Order / December 13, 2000).
40 Salamone v. Golden Horn Condo. Assn., Inc., Case No. 96-0370 (Scheuerman / Summary Final Order / July 17, 1997).
41 Woodside Village Cd’m. Ass’n., Inc. v. Jahren, 806 So. 2d 452 (Fla. 2002).
42 Fla. Stat. §718.112(2)(f)3.
43 Real Property, Probate and Trust Law Section, www.rpptl.org.
44 “Read the directions and directly you will be directed in the right direction.” Doorknob. Alice in Wonderland.
Michael J. Gelfand is the senior partner of Gelfand & Arpe, P.A., in West Palm Beach and Boca Raton, emphasizing a community association law practice, and is co-owner of ARC Mediation. He is certified by The Florida Bar in real estate and is vice chair of the Real Property, Probate and Trust Law Section’s Legislative Review Committee. He has also served as past-chair of section’s Condominium and Planned Development Committee.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Melissa Murphy, chair, and William P. Sklar and Richard R. Gans, editors.