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All

Alimony-Tax-Deduction

New Divorce Laws in Florida

All posts, Business Law, Employment Law

At The Orlando Law Group, we certainly understand the stress, confusion and emotions that come with a divorce, particularly one that has alimony payments and child custody arrangements.

Unfortunately, many of the laws guiding Florida courts for decades have been upended this month. For more than a decade, there has been an effort to substantially overhaul these laws. Both Governors Ron DeSantis and Rick Scott have vetoed similar legislation in the past.

This year, however, the laws passed and this month, a slew of new laws took effect in Florida dealing with alimony and child custody.

While not retroactive, any new petitions for divorce will have these new laws apply.

If you are already divorced, these new laws could affect you too as there are new standards to petition the courts for a modification of your divorce agreement.

The big one that could see substantial changes in your agreement is the end of permanent alimony for any new divorces. For those receiving or paying permanent alimony, that could change in the future with new restrictions on retirement, outside support and other aspects.

If you are filing for divorce soon, alimony will be based on the length of your marriage and other factors, but it will now be required to end at some point.

As to custody arrangements, the court now takes the stance that co-parenting – a 50/50 split – is best for the child unless either side proves that not to be the case.

Keep in mind as with any new law, there will be court challenges and other actions to fix any issues with the law, so this could change.

But if you have a divorce agreement from a Florida court, it is imperative you reach out to The Orlando Law Group soon to review and see what your options are and how this new law might affect you.

The Orlando Law Group can help you with any family law issue that might arise, including ones dealing with alimony and child custody. Our full-service firm helps businesses and individuals in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

What is alimony?

In any divorce proceeding, the courts look at how to ensure individuals are not immediately put into financial stress through a divorce. This can come in a variety of forms, from a lump sum payment, a “bridge-the-gap,” rehabilitative and durational.

In each of those cases, there is a wide range of factors that determine the amount and the length of the alimony payments. Usually, without an agreement, the courts would set the length and cost of alimony, including sometimes making it permanent – only ending with death or remarriage.

No more permanent alimony

As of July 1, the new law completely eliminates all permanent alimony, now requiring an end date to the payments.

According to the previous statutes, “Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage.”

It was meant for couples separating from long marriages in most cases and it was viewed by statute as the last choice.

The alimony ended when the payee remarried or died, or if there was evidence of new outside financial support – generally living with someone – with a modification filing.

All of that is gone now. In Florida, there are now limits as to how long alimony can last. If you were married for three to 10 years, alimony can not exceed 50 percent of the length of the marriage; for 10-20 years, 60 percent of the length of the marriage; and over 20 years, 75 percent of the length of a marriage.

In addition, there is now a cap on the amount of alimony in durational alimony. It cannot “exceed 35 percent of the difference between the parties’ net incomes, whichever amount is less.”

Wait, there’s more…

One of the things that may have huge implications was the change in the definition of the length of a marriage. That can have large ramifications on your settlement.

In the past, a short-term marriage was defined as up to seven years. It is now 10 years. A moderate-term marriage was from seven to 17 years. It is now 11-20 years. And a long-term marriage is now over 20 years!

This could result in a significant reduction in your anticipated alimony payments.

If you already have permanent alimony, it is also easier to get a modification based on the circumstances of the payee. Before July 1, you could ask for a modification only if your ex-spouse was living with another person. (It automatically ended with remarriage). Now, alimony could end based on another person – other than family or a spouse – supporting your ex for a year or more.

Finally, Florida statute now clearly states how an alimony agreement can be altered in the case of the payor retiring. While this has been somewhat of a precedent based on earlier court cases with modifications, the definition of retirement is clearly stated in the statute and if those definitions are met, alimony ends or is reduced.

Child custody changed too!

A separate piece of legislation may influence divorce agreements with children.

In the past, each case of custody was looked at individually, meaning there was no basis for who had prime custody at the beginning of the case.

Now, the court starts all cases that involved children with the presumption the best interest of the child is to have 50/50 shared custody of minor children. If that is not the case, you must prove “preponderance of the evidence” that a different parenting situation is best for the child.

It is still to be determined how this will be utilized and change how child custody is currently determined.

That is why we believe it is essential to reach out to The Orlando Law Group if you have an existing divorce settlement or are thinking about divorce to ensure you are protected under these new statutes.

The attorneys at The Orlando Law Group represent clients in family law issues and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

July 5, 2023/by Alan Byrd

Independent Contractor Rules Change Again

All posts, Business Law, Employment Law

As business owners at The Orlando Law Group, we certainly use independent contractors as do many businesses throughout Florida. After all, independent contractors can often provide significant experience in a given field for a fraction of the cost of an employee.

Plus, many of the issues and costs surrounding employees – benefits, overtime, scheduling, time-off and more – are eliminated by working with independent contractors when possible.

Over the past few years, the “gig economy” has had courts, the IRS and the National Labor Relations Board looking closer at how workers should be categorized. And during the Trump administration in 2019, there was an expansion on who could be a contractor.

This June, however, the National Labor Relations Board issued a new ruling to basically reverse that decision. The issue comes down to entrepreneurial opportunity and if the contractor is working for multiple clients.

At The Orlando Law Group, we anticipate these types of criteria will fluctuate for a while as regulators work out how the gig economy will work.

The Orlando Law Group can help your business with any legal issue that might arise, including ones dealing with independent contractors. Our full-service firm helps businesses and individuals in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

What is an Independent Contractor?

Over the years, the independent contractor has been an important part of many business plans. They have been called consultants, 1099s, contractors and more.

But businesses that use them cannot simply substitute an employee for an independent contractor. There are specific rules, but for the most part, it comes down to control. Unlike an employee, a business does not provide any tools to the independent contractor – and cannot control how the contracted work is performed.

For instance, if you hire independent contractors as salespeople, you cannot provide them with sales leads. You cannot say they have to work every Friday or set their hours in any shape or form. You cannot require them to go to the office. You cannot provide them with a laptop or a computer. You shouldn’t even give them a business card with the company’s name on it.

Benefits are off the table. You are not responsible for overtime and certainly not responsible for taxes.

And you most certainly cannot prevent them from contracting to sell for another company at the same time, although you could make industry exclusivity a part of the contract.

The same applies if you are using a delivery driver as an independent contractor, or hiring a beautician, or a pilot, or myriad of other jobs.

Here’s how the IRS determines independent contractors, using three “Common Law Rules.”

  1. Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?
  2. Financial: Are the business aspects of the worker’s job controlled by the payer?
  3. Type of Relationship: Are there written contracts or employee type benefits? Will the relationship continue and is the work performed a key aspect of the business?

Businesses must weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another.

These Common Law Rules have governed the independent contractor relationship for quite a while.

Entrepreneurial opportunity

So, what changed?

While the Common Law Rules have been part of the discussion on independent contractors for decades, what changed repeatedly in the last decade is how “entrepreneurial opportunity” is defined.

At the center of that term is how the independent contractor can grow their own business with other clients and other contracts.

In 2014, the NLRB said entrepreneurial opportunity was based on real entrepreneurial opportunity –the independent contractor acquired multiple clients. This ruling limited the number of independent contractors and classified many individuals as employees.

In 2019, that determination was expanded. It wasn’t specific to whether the independent contractor had acquired other clients, it became hypothetical. Could the independent contractor grow their business with other clients, even if they hadn’t? And that became the overriding element of classification.

Of course, applying potential instead of actual actions expanded who could be an independent contractor and the newest ruling from the NLRB returns to the 2014 meaning.

What does this mean for businesses? 

The classification of workers as employees or independent contractors is critically important. If you misclassify employees as independent contractors, you could be liable for back taxes and pay, and depending on the extent and negligence on your part, there could be major fines.

These fines can be significant. For instance, Nike is facing a $500 million fine for misclassifying employees. A small construction staffing company with 200 employees in Virginia has a $270,000 fine to pay for misclassifying employees.

At this point, it is important to be as conservative as possible with independent contractors.

We also believe to protect yourself; you should have an attorney at The Orlando Law Group review your independent contractor agreements. We understand your needs as a business owner and want to make sure your business thrives.

The attorneys at The Orlando Law Group represent clients in business law, labor issues and more in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

June 26, 2023/by Alan Byrd

The Orlando Law Group Named a 2023 Best Place to Work

All posts, Blog, OLG in the News

Full-service law firm only law firm in Central Florida on the list

Orlando, Fla (June 20, 2023) – With a significant internal focus on support, friendship and growth for its employees, The Orlando Law Group has been named one of the top companies to work for in Central Florida by Orlando Business Journal.

It is the only law firm on the 2023 Best Places to Work list, comprised of 79 companies in the seven-county metropolitan area.

“We are truly different from other law firms by focusing on our employees and their personal growth and needs, which shows when we are working with our clients,” says Jennifer Englert, founder, The Orlando Law Group. “To be the only law firm on this list is an incredible honor but is reflective of what we have been working to create since I founded this firm more than a decade ago.”

At that time, Englert had just been passed over for a promotion after spending time – but working – on maternity leave. At the core of the new law firm then and still today is compassion for anyone who works there – and their clients.

The Best Places to Work is an intensive process, including a survey that must be completed by more than 80 percent of a company’s employees. The results of the survey are then judged by Orlando Business Journal partner Omaha, Nebraska-based Quantum Workplace.

In the initial nomination, several reasons were given for why The Orlando Law Group should be considered. One of the main points is the company’s upward mobility. In fact, 30 percent of the employees started with the firm and have been promoted to their current roles.

Other reasons include:

  • Frequent company outings and retreats, such as a family cruise or teambuilding dinners.
  • Flexible schedules for family time, even allowing pets to come to work when needed.
  • Strong benefits, including an annual three percent 401k contribution.
  • Celebrations of birthdays, anniversaries and even a Halloween costume contest.

“Really, it comes down to treating people how you would like to be treated,” Englert says. “Everyone on our team truly enjoys each other and has built tremendous camaraderie together.”

The full list of 2023 Best Places to Work can be found here. Orlando Business Journal will be recognizing the companies at an event on August 24 and running a special section featuring all of the companies in its August 25 edition.

###

For more information, contact Alan Byrd, Alan Byrd & Associates, 407-415-8470, [email protected]

About The Orlando Law Group: Founded in 2009, The Orlando Law Group is a full-service law firm with 11 attorneys in four offices in Orlando, Winter Garden, Altamonte Springs and Lake Nona. The firm specializes in a broad range of practice areas specifically for individuals and businesses, particularly in business law, family law, personal injury law, personal finance and estate planning law and much more. For more information, please visit TheOrlandoLawGroup.com

June 22, 2023/by The Orlando Law Group

ChatGPT, Artificial Intelligence and the Law

All posts, Blog, Legal Commentary, Miscellaneous, News

Just like everyone, The Orlando Law Group wants to explore the capabilities of ChatGPT and other artificial intelligence technology coming out. But we are attorneys and we approach everything with caution.

With any new technology, there are going to be pitfalls. We certainly watched closely as the artificial intelligence system provided fake cases that were used in court pleadings in New York. We are also watching how businesses are starting to use ChatGPT in a wide range of uses, everything from marketing language to creating policy documents to building sales plans.

From what we have seen, the technology is fantastic for searching for information, but there are obstacles that come that may present legal issues for your and your business if you use them.

The Orlando Law Group can help your business with any legal issue that might arise, including ones dealing with new technologies. As a full-service firm with attorneys helping businesses and individuals, we help businesses in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

What is ChatGPT?

Late in 2022, OpenAI unveiled its latest project, ChatGPT. This new tool can research and compose articles, papers and more on just about any subject.

For instance, we asked it “What is ChatGPT in two paragraphs?” In a matter of seconds, it responded with:

ChatGPT is a state-of-the-art language model developed by OpenAI. It represents the cutting-edge in natural language processing and generation technology. Built upon the GPT-3.5 architecture, ChatGPT has been trained on an extensive corpus of diverse and high-quality text data, enabling it to understand and generate coherent responses to text-based prompts. The model utilizes a transformer architecture, which allows it to capture long-range dependencies and contextual relationships between words and sentences.

With ChatGPT, users can engage in interactive and dynamic conversations with the model, making it a versatile tool for a range of applications. It can serve as a chatbot or virtual assistant, providing human-like responses and assistance in various domains. It can also be used for content generation, translation, and aiding in research tasks. While ChatGPT exhibits remarkable language understanding and generation capabilities, it’s important to exercise caution and verify information obtained from the model, as it may occasionally produce inaccurate or misleading responses. Nonetheless, ChatGPT represents a significant advancement in the field of natural language processing and is poised to shape the future of human-computer interaction.

Maybe we should have asked it for a simple definition…

What could go wrong?

As with any new technology, there are too many possibilities for something to go wrong that we can not possibly see every legal issue that might arise in the future and there is a strong possibility that legislation might affect those issues.

But for now, there are a few things we think could cause legal issues.

  1. Copyrighted material:

Every business should be very protective about their copyright materials and be careful not to use copyrighted material. ChatGPT could create issues for the user – and the copyright holder.

Bloomberg Law wrote a tremendous piece on this subject, but the central aspect on copyright issues is what role a person plays.

Late last year, the U.S. Copyright Office issued the following:  The Human Authorship Requirement – The U.S. Copyright Office will register an original work of authorship, provided that the work was created by a human being. The copyright law only protects “the fruits of intellectual labor” that “are founded in the creative powers of the mind.” Trade-Mark Cases, 100 U.S. 82, 94 (1879).

Basically, this says if the material is determined to be an output of a computer, then it is not eligible for copyright protection. Of course, that is subject to interpretation too. Does the prompt given to ChatGPT constitute “human authorship?” That is still to be determined.

What about your copyrighted material? After all, your words, your lyrics, your designs are most likely in the public domain and could be used by ChatGPT. In that case, it is somewhat based on traditional laws. Did the user plan to make money off the copyrighted materials? If so, you might have a case.

  1. Trademarks and licensing

In this case, it is fairly straightforward. While artificial intelligence is very good at utilizing photographs and images, you simply can not do that in any marketing aspect. In most cases, the technology will only use this sort of image – logos, photos, etc. – if prompted by the user.

So, as a rule of thumb, just do not use celebrities, brands, and logos when you ask ChatGPT.

  1. Proprietary and protected data

Nearly every business takes great strides to protect data, like customer credit cards. medical records or proprietary algorithms. And any company that deals with that type of data fully understands the amount of and the creativity of cyber-attacks can be overwhelming.

Unfortunately, AI and ChatGPT expose other avenues for criminals to exploit. For instance, you might input customer information into your chatbot program to help it answer questions better. That might have been secure a year ago, but now that could be found through new technology and used elsewhere – and publicly.

  1. Check your facts

Finally, we come back to the attorney who submitted fake cases provided by ChatGPT in court documents. The issue is the attorney assumed it was right.

Most businesses would not see something on Twiiter and claim it is a fact in their marketing or their proposals without verifying first. The same rule applies to ChatGPT and any artificial intelligence. Check your sources because at best, you may look foolish, but at worst, you could be found liable for false advertising, statements and more.

The Orlando Law Group is starting to see how these technologies can be applied and improve our legal research, but our attorneys understand the best computers still cannot listen to you and your needs and develop cases or defenses based on your unique situation.

That is our specialty. A full-service law firm with attorneys who are involved with you, care for you and advocate for you.

The attorneys at The Orlando Law Group represent clients in business law, copyrights, trademarks and technology in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

June 22, 2023/by The Orlando Law Group

LLCs: Is It Better to Tax as a Partnership or S-Corporation?

All posts, Blog, Business Law

All businesses, even some of the biggest corporations you can think of, started as a small business. They are a major part of the American dream and they allow people to use their creativity to support their local community or build a life for themselves. This concept draws in people from all over the world who do not have the same opportunities as those born in the United States.

There are millions of small businesses in the United States, and they are the bones of the American economy. They create tens of thousands of jobs each year, make up almost all businesses in the United States, and are accountable for a large portion of the country’s economic activity.

That being said, starting a small business is not always easy. It takes a lot of time, money, and personal investment to start a small business and make it successful. It also comes with a lot of decisions on how the company should be structured and taxed.

One of the most common structures for small businesses are Limited Liability Companies, commonly referred to as LLCs.

What is an LLC?

An LLC protects owners from being personally responsible for a company’s debts and liabilities and was created by law.

When there is an LLC with a single owner, it is treated like a sole proprietorship, and when there are multiple owners, they can be taxed as either partnerships or corporations.  It is important to talk to your accountant about what is best.

Some of the benefits of an LLC taxed as a partnership include:

  • Flexibility: firms that have complex structures of ownership and investment strategies that vary, find that the flexibility in profit distribution, governance arrangements, and structuring ownership interests is very important.
  • Pass-through Taxation: Pass-through taxation is when the profits and losses of the firm flow through to the partners or individual member’s personal tax returns. This avoids something called “double taxation,” being taxed twice on the same income, and allows the tax treatment to be aligned with situations of the individual investors.
  • Limited Liability Protection: This structure provides limited liability protection, which means that the personal assets of the members or partners and the liabilities of the firm are separate. This is extremely important for private equity firms that engage in investments that are high-risk.
  • Operational Flexibility: LLCs also offer operational flexibility. This allows private equity firms to make their own decisions and manage their investments efficiently, to their liking. It allows for the adoption of operating agreements that can be made to meet any specific requirements or needs the firm has.
  • Alignment with Investor Preferences: Many investors, including high-net-worth individuals and entities that make investments for other people, actually prefer investing in private equity funds structured as LLCs taxed as partnerships. The pass-through taxation allows the tax treatment to align with the investors’ individual needs and desires, which makes it a lot easier to incorporate the investment into the rest of their tax planning.
  • Section 754 Basis Adjustment: By taxing an LLC as a partnership, private equity firms might be able to take advantage of a Section 754 election. This gives the firms the ability to adjust the tax basis of the partnership’s assets when ownership interest goes under transformation, which can be a valuable tool. When private equity firms engage in buying and selling investments, to allocate the stepped-up basis to the acquiring partner and potentially increase amortization deductions or future depreciation. This can be helpful in the private equity industry where there are varying tax bases and holding periods for investments. It provides additional flexibility when managing investments, especially when frequent transfers of partnership interests are anticipated or if there is a diverse portfolio with assets held at varying tax bases.  This can possibly result in tax savings and enhanced tax planning opportunities.  The benefits are not uniform, and they depend on the unique circumstances of the firm and its investors. It is especially important for private equity firms to examine this carefully and consult with legal and tax professionals to determine what the best option for them is.

Another option for taxing LLCs is by taxing them as an S corporation. This is a selection you have to actively make that has a similar pass-through taxing structure. Therefore, taxing an LLC as an S corporation has some of the same benefits as taxing it as a partnership, but there are differences also.

  • Restrictions on Ownership: There are specific eligibility requirements for shareholders. It is limited to one hundred or fewer individuals, select trusts, and estates as shareholders. This can, effectively, limit the flexibility when it comes to raising capital or having certain types of investors.
  • Limited Flexibility in Allocations: S corporations are subject to more strict allocation rules than LLCs taxed as partnerships. They have to distribute their profits and losses to their shareholders according to percentage of ownership. This can become a problem if an owner wishes to allocate the profits or losses in a disproportionate way, because of different shareholder agreements.
  • Restrictions on Entity Structure: S corporations also have restrictions on what kinds of entities can own their shares. For example, C corporations, partnerships, and most kinds of LLCs cannot be shareholders. This limits the options for structuring more complex business relationships or even pursuing certain investment strategies.
  • Limited Fringe Benefits: There may be restrictions on tax treatment of fringe benefits if the S corporation owners own more than 2% of the company’s shares. The owners may also be subjected to additional tax consequences for benefits such as health insurance premiums, medical expense reimbursements, etc.
  • Potential Self-Employment Tax: While shareholders of an S corporation might be able to save on self-employment taxes by paying themselves a lower salary and taking the extra profits as distributions, the IRS may scrutinize the salary amount. If it is deemed unreasonably low, they could reclassify a portion of the distributions as wages, making them subject to employment taxes, which can result in additional tax liabilities and potential penalties.
  • Termination of S Corporation Status: The requirements of an S corporation must constantly be adhered to, in order to maintain their status. If they are not, for instance by exceeding the limit on the number or having an improper type of shareholder. This can, unfortunately, lead to unintended tax consequences and higher taxes if the corporation ends up being treated as a C corporation.

If you are looking for an attorney who understands business, look no further than The Orlando Law Group. Our firm is led by a serial entrepreneur, Jennifer Englert, who has not only grown the firm from its inception but is also a founder or owner in more than a dozen companies in and around Orlando, Altamonte Springs, Winter Garden and St. Cloud.  That experience is critical in giving you legal advice. The Orlando Law Group is not just looking at the law pertaining to your unique circumstance, but it is also looking at your business and what makes your business special.

If you would like to schedule a consultation for any business issue, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it for any of our services, not just business law.

June 6, 2023/by The Orlando Law Group

Update Your Estate Plan After Major Life Events

All posts, Wills, Trusts & Estates

Estate Planning is the process of creating legally enforceable documents that determine how your assets will be distributed upon the event of your death. Your estate plan, just as it sounds, refers to your personal plan for your estate, including who inherits what, which assets and how those assets will be distributed to your beneficiaries or heirs.

There may be many reasons why a person should update their estate plan, but generally, you should look to update your estate plan after a major life event, such as getting married, getting divorced, or after having a baby. Keeping your estate plan up to date allows you to best ensure that your wishes for your estate are followed and that your legacy is protected. Read on to learn about some of the common reasons or major life events after which someone may need to update their estate plan.

  1. Marriage: Starting a life with your spouse brings with it many life-altering changes. But during this exciting time of wedding planning, honeymoon booking and even preparing for the eventual arrival of children, it’s vital that you don’t forget to keep your estate plan up to date. Doing so allows you to name your new spouse as an emergency contact or beneficiary for existing insurance benefits, and to ensure that he or she is taken care of in the event of your death.
  2. Divorce: Splitting up a marriage can be messy and costly. Updating your estate plan following the dissolution of a marriage is vital to ensure that your assets are split as per your wishes. Many people take their ex completely out of the equation, while some prefer to leave them something in their will. No matter what your decision may be, it is incredibly important to get your wishes on paper as soon as possible.
  3. Cash Infusion: If you receive a large salary increase at work or come into money through inheritance or chance, you’ll want to update your estate plan to accommodate a larger bank account.
  4. Having a Child or Having a Grandchild: Adding on to your family is a joyous occasion that calls for immediate alterations to your estate plan. Your new addition needs to become a beneficiary, and guardians must be named in your will. (This is also a great time to draft a will if you haven’t yet!) As you add on to your family over the years, you should continuously update your estate plan. It’s best to amend the documents so the new family members are named and specifically included in your estate plan.
  5. Your Life’s Circumstances or Relationships Change: A change in your life’s circumstances or your personal relationships could refer to the addition of a new child, grandchild, niece or nephew, or perhaps a new romantic relationship of close friend, which could lead you to want to alter your estate plan to specifically include new friends, romantic partners or family members in your estate plan. However, there may also be times when it is appropriate to remove someone who formerly was included in the estate plan, such as someone who has been irresponsible with money in the past or who is estranged from the family. You may also decide to include a charitable organization in your will.
  6. A Death in The Family: If you outlive some of the people named in your estate plan, you will need to update once again. If your Power of Attorney, Health Care Proxy, or Executor passes away you will need to name new ones. Also, should a beneficiary die, their inheritance should be reallocated immediately to other living heirs.
  7. Sickness: If you are diagnosed with a chronic or fatal illness you should begin planning before your condition worsens. As per your estate plan, you can decide who will make medical decisions on your behalf in the event you become physically unable. You can also use this opportunity to fill out a Do Not Resuscitate order if your state allows it.
  8. Changing Laws and Locations: Federal and state laws are constantly in flux and can impact your estate plan. Also, since different states have different laws, it is important to check with a legal professional once you move to a new area to see if any changes need to be made to your existing plan.

As you can see, there are many reasons a person would want to update their estate plan after a major life event. However, the importance of timeliness in updating your estate plan should not be underestimated. If you fail to keep your estate plan up to date for whatever reason, or if you suddenly become unable to update your estate plan (such as after falling ill or becoming incapacitated), your estate could end up in the hands of someone that you did not intend it to be for. The last thing you would want is for your estate and assets to go to someone you did not want it to go to and to fall out the hands of those you did want it to go to just because you did not speak to an estate planning attorney and update your estate plan.

If you need to make any changes to your estate plan after a major life event, you should do so as soon as possible so that you do not miss the chance to do so and to put your mind at ease knowing that your estate is in good hands. If you have not already created your estate plan or had a will prepared, you should consult with an estate planning attorney to get your documents drafted as soon as you can.

The attorneys at The Orlando Law Group represent individuals throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with an estate planning issue or looking to establish your own estate plan, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

June 22, 2023/by The Orlando Law Group

Terminating a Foreign Worker

All posts, Business Law, Immigration

We’ve all been there. 

You hire what you think will be a great employee, and it turns out you missed the mark during the interview. Or your great employee is found to be harassing other employees. Or you just need to cut certain staff because of a downturn in the economy.

In nearly any circumstance, ending the employment of someone who works for you is not an easy task.

But what if that employee came to you through an immigration program, like an H-1 visa or an E visa? If that’s the case, there are very specific steps you must take to follow state and federal laws for both immigration and labor laws.

The Orlando Law Group can help your business on both accounts. As a full-service firm with attorneys helping businesses and individuals, we can certainly help employers looking to terminate foreign workers in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford and throughout Central Florida.

Notification of Termination

In nearly all cases of employment immigration, if you are terminating the employment of someone who is working with you under an employment visa, you will need to ensure multiple entities are notified. 

This could include the employee, the United States Customs and Immigration Services, and possibly the consulate of the employee’s country of origin. Like so many legal concepts in immigration law, the actual process is dependent on the visa that is being used.

There are two possible exceptions to the above. If the employee is under a TN visa for employees from Mexico and Canada, and if a visa is designated for employees who transferred from one location within the company to a location in the United States.

Extra Expenses

When employing foreign workers, there may be expenses you have incurred when bringing those workers to your company.

Likewise, if you terminate a foreign employee, you may need to reimburse the employee to aid them in returning to their home country for “At least equal to the costs charged by the most economical and reasonable common carrier for the distances involved,” according to the Department of Labor. 

This stipulation does not apply equally to all employment visas, and the case law on this issue evolves regularly. There is no hard definition of what is the “most economical and reasonable” cost that an employer must pay. 

The attorneys at The Orlando Law Group are here to help you navigate this critical step.

Grace Period

When you terminate an employee, that employee is not necessarily required to go straight to the airport and back to their home country. In most cases, workers are provided a grace period of up to 60 days to put their affairs in order and return to their home country. 

To be clear, however, this is not an excuse for workers to overstay their visa. If the visa expires 30 days after termination, the employee can only stay for 30 days. 

There may be other options available for the employee in this situation. While this blog is focused on employers, The Orlando Law Group can help individuals who were terminated while working in the United States through an immigration program as well. There also may be some opportunities for an individual to stay in the United States after termination. 

Your attorney at The Orlando Law Group can help to see if there are options available in your unique circumstance.

I-140 Withdrawal

One of the central parts of terminating an employee is the I-140 petition, which is key to the immigration process for certain employees. 

Remember, this does not apply to all foreign employees but can have significant effects on some foreign employees. The attorneys at The Orlando Law Group can help you determine what may happen to an employee’s I-140 petition.

For employers, keep in mind the I-140 petition is extremely important to your employees, and a commitment to not withdraw the petition within the first 180 days of employment can be a very useful employee benefit to attract higher-level employees. 

Attorneys for Both Employee and Employer

The Orlando Law Group is a full-service law firm that helps businesses, organizations, and individuals with a wide range of legal services. As such, there may be cases where The Orlando Law Group can represent both the employer and the employee in an immigration case when their interests are totally aligned.

Of course, when that happens, The Orlando Law Group will be open and transparent and will only provide legal assistance to both parties with the express permission of both parties as information must be shared between everyone.

Conclusion

While terminating an employee can be complicated, The Orlando Law Group can help guide you to operate within the complex immigration system and its associated labor laws. 

The complexity of terminating foreign employees should not prevent any business from hiring foreign employees. The benefits of foreign labor can be substantial, especially during times like these when good employees are hard to come by.

If you are looking to terminate a foreign employee in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, or Kissimmee, we’re here to help you with a full team of attorneys who care about you and your circumstance and treat you with compassion while seeking the best possible outcome for you and your loved ones. 

The attorneys at The Orlando Law Group represent businesses in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

February 8, 2023/by The Orlando Law Group

Can a Tenant Delay The Eviction Process?

All posts, Blog, Real Estate

In Florida, eviction actions range in completion time depending on the County, and the specific judge assigned to your case. Typically, the tenant has not paid rent for a few months, and the landlord is ready to kick them out of the residence. The most frequent question we receive from Landlords is whether the tenant will be able to fight or delay the eviction process.

Chapter 83 Florida Statutes, and the lease agreement are the controlling documents between the landlord and the tenant. It is important to note that while your lease can not take away certain tenant rights provided under the statute, it can provide the tenant with additional protections beyond what is provided under Florida law. For example, the statutes say that if the tenant fails to pay rent, you can serve them with a three-day notice, and subsequently terminate the tenancy if they fail to remedy the non-payment. See 83.56(3). However, if your lease provides five (5) or seven (7) days instead of three (3), you are bound by the terms of your lease. Make sure your lease provides only the protections that you want and does not extend the statutes reach in favor of your tenant.

When you have properly terminated the tenancy (giving the proper notice as required under the Florida Statutes), you can file an eviction action. As an eviction is a legal action, the tenant will always have a right to respond to the case before they are kicked out. Possession of the property is governed by the summary procedure in Florida which gives the tenants the opportunity to respond within five (5) days of service of the complaint upon them. During this period, you cannot progress your eviction action. Upon the expiration of the five (5) days, your next move will be determined based on whether the tenant has filed a response to your complaint:

  • If the tenant has not filed a response you can move for a clerk’s default against the tenant. Once the clerk’s default is issued, you can ask the Court to enter a Judicial Default and Final Judgment. This is the fastest route to remove a tenant.
  • If the tenant does file a response (and likely a Motion to Determine Rent) you will need to determine whether the tenant has presented any legitimate defenses to your action for eviction. The next step is to set a hearing before the judge to determine whether the tenant’s arguments have any merit.

Evictions on average take about one (1) to three (3) months depending on the County and the specific judge. The Landlord is not receiving rent during this time, while also coming out of pocket to pay the expenses for filing the eviction. The landlord is typically paying a mortgage on the property as well, so financially, this does not put the landlord in a good place. Every Landlord wants to streamline the process and get the tenant out as fast as possible, and often as, “is there any way for the tenant to delay the eviction process.” Unfortunately, yes.

Ways Tenants Delay Evictions:
1. If the tenant is not financially able to pay the rent, or if they are materially violating the lease in a different way, the Tenant may tell the landlord what they want to hear to lengthen the amount of time before the landlord files the eviction. Oftentimes landlords try to be friends with their tenants, but this false idea harms the landlord because you may be a few months behind on rent before you file the eviction action. Now the one (1) to three (3) month eviction process begins and you have lost rent for almost half a year while carrying liability and responsibility for the property.

  1. Deficiencies in Landlord’s Notices: The statutes make it clear that there is very specific language that must be provided in the Notice that you provide. If you fail to adhere to the requirements and it is brought to the judge’s attention, they may reset your case and require you to give the proper notice.
  2. Motion to Determine the Amount of Rent to Place Into the Registry: 83.60(2) provides that the tenant can file a Motion to Determine the amount of rent owed if they believe the amount in the complaint is incorrect. If a tenant files this Motion, do not wait to set a hearing on the matter. The Court will not move forward with the case until one of the parties sets the Motion for hearing.
  3. Accepting Rent with Knowledge of a non-compliance 83.56(5)(a): If the Landlord is aware of a matter of noncompliance by the tenant, the Landlord must be careful when they accept rent from the tenant. By accepting rent, you may have waived your right to evict over certain action committed by the tenant.
  4. Unclean Hands: A Landlord cannot evict a tenant for something that has happened within the control of the Landlord. If the Landlord is the cause of the action creating the need for the eviction, the removal of the tenant is likely to be unsuccessful.
  5. Issues with Service: The tenants must be served in accordance with Florida Statutes. If the Landlord delivers the summons to the tenants themselves, or if there are any other deficiencies in service, the Court could force the action to restart, requiring the Landlord to properly serve the tenants.
  6. Retaliatory Evictions: The Landlord cannot evict the tenant as retaliation for the Tenant exercising a legally protected right. This will have your eviction action dismissed and you may face civil penalties.
  7. Self-Help: The landlord must go through the Court system to remove a tenant. The Landlord is not allowed to “Self-Help.” This means that the Landlord cannot change the locks, remove doors or windows, cut off utilities (even if they are in the landlord’s name) or removing the tenants belongings.
  8. Landlord Does Not Evict All Parties: Sometimes there are tenants, sometimes there are other occupants, and sometimes there are unknown parties in possession. This is crucial to identify at the time of filing the eviction because a judgment against one party does not operate as a judgment against all parties. You may be successful in getting your tenant out to find that a friend of theirs has been living in the house and now refuses to leave.
  9. Filing the Appropriate Action: There are three main ways to get people out of a house. Chapter 83 (Evictions), Chapter 82 (Unlawful Detainer) and Chapter 66 (Ejectment). If you file the wrong type of action, your court case will either be dismissed or transferred to the appropriate Court.
  10. Bankruptcy: The automatic stay of a bankruptcy may prevent you from removing your tenant from the property for a period of ninety (90) days unless you have received a final judgment prior to the bankruptcy filing.

If there is a way to delay the eviction action, the Tenant is going to try to do so. As a landlord, make sure that your lease is strong, and that you have conducted yourself in accordance with Florida Statutes. If the Tenant poses a defense, address it during the eviction but do not wait to file your action until you are financially strapped.

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

Real estate is an essential part of the Florida economy. Whether you are a large developer or simply buying a home, you need real estate counsel. The Orlando Law Group’s attorneys handle virtually all aspects of real estate. We represent individuals by reviewing their leases as well as contracts. We also represent developers, contractors, lenders, and owners of commercial properties.

Why Hire a Florida Real Estate Attorney?

To start, why should you hire a real estate attorney? There are countless reasons why one might want to hire an attorney, but here are a few of the most common. First, hiring an attorney to handle your real estate matter will ultimately save you time and money. A real estate attorney will safeguard you, your clients and their investment by thoroughly reviewing all legal documentation, handling negotiations keeping you and your clients informed throughout the process and asking the questions you may not know to ask. Hiring a real estate attorney can also give you clarity and peace of mind throughout the transaction. Hiring an attorney to review all agreements and contracts and assist in negotiations will ensure the maximum level of transparency and comfort for your clients and can also grant you the peace of mind that your transaction is legally sound and has been reviewed thoroughly by a professional.

A real estate attorney also has valuable experience and knowledge from working in the field that simply cannot be recreated. Our attorneys have the institutional knowledge of working daily in the industry and have their fingers on the pulse of the local and state laws. Especially for those of you with unique real estate situations, it’s important to have the legal support to mitigate any risks that could delay, if not jeopardize, your real estate purchase. Lastly, hiring a real estate attorney can also expedite the process of your transaction significantly. Hiring a Florida real estate attorney not only serves to protect each party’s interests but also expedites the entire process and helps to streamline the contract negotiation, the closing process, securing title insurance and communicating with lenders.

The Importance of Prevention in Real Estate Law and for Real Estate Agents

Often, we turn to lawyers as a last resort – after the contract has been signed, or when a dispute is already out of control. However, good legal advice is one of the greatest preventative measures a lawyer can provide. Not only can it save you money in the long run, but it can also save you from unpleasant difficulties later.

At The Orlando Law Group, you can be sure that your attorney possesses both a sharp, experienced legal mind, and a friendly smile that will welcome and comfort you. What’s more, we are serious about preventative legal tactics, working to solve issues for our clients before they blow up into legal messes. Simply put, we are here for you, and we have your back at all times!

A successful Florida residential real estate transaction is more than mere document preparation. Buyers and sellers alike may encounter any number of hiccups including, but most definitely not limited to, disclosures, financing, findings as a result of property inspections, dealing with property owner association requirements and title insurance.

As a real estate agent, it is wise to have a go-to Florida real estate attorney to ensure that you and your clients are protected and are properly informed when making pertinent decisions. While conducting a residential real estate transaction in Florida, only an attorney can provide legal guidance and advice that is truly in your best interest.

Legal Connections in Real Estate – Why Hire a Full-Service Firm?

  • Diverse Clientele: Our firm provides legal assistance to a wide variety of clients with different needs and preferences, meaning our team is well-equipped to handle the specificities of your situation.
  • Multiple Perspectives: If your attorney needs an objective perspective from a different legal professional, they can get that from within the firm. You can’t get that kind of flexibility from a boutique lawyer, who would have to hire another attorney for a second opinion.
  • One-Stop-Shop: At The Orlando Law Group, we work as a team in all endeavors. With each attorney having experience in a multitude of fields, we can provide a comprehensive solution for our clients.
  • Flexibility and Creativity: As a full-service firm, each member of our team has a diverse skillset and base of knowledge. With these assets, we are able to navigate through each case with flexibility and provide creative solutions for our clients.
  • Adaptability: Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.

A legal challenge can easily stretch across multiple practice areas. Real Estate Law, for example, can stretch into business law, family law, and estate planning quite easily. As a full-service firm, we are well-equipped to tackle any legal challenge involving real estate, regardless of how many other disciplines the challenge involves. We offer a wide range of services to meet the needs of the Florida real estate community, whether it be for residential or commercial real estate. Here are a few examples of some connections real estate law can have with other areas of law:

  • Family Law: A divorce or separation can often involve complex real estate transactions or the division of assets, including property.
  • Probate Law: When a person passes away, you may find yourself in a situation where the deceased person owns a piece of property and the heirs of that person want to sell it, but probate must be administrated prior to this occurring.
  • Business Law: Business law can easily relate to real estate law when commercial property transactions are involved, or a business is buying or selling a property.
  • Civil Litigation: In some situations, disputes cannot be fully solved through negotiation and may require complex civil litigation to address.

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

February 1, 2023/by The Orlando Law Group

Commercial v. Residential Real Estate What’s The Difference? What Does a Commercial Real Estate Lawyer Do?

All posts, Blog, Real Estate

There are two main types of real estate: commercial and residential. Commercial real estate is any property that is used for business purposes, whereas residential real estate refers to any property that is used for housing or living purposes.

There are some key differences between residential and commercial real estate. For example, commercial leases are typically longer than residential leases, and commercial mortgages are typically larger than residential mortgages. Furthermore, the regulations and laws that govern commercial real estate transactions tend to be more complex than those that govern residential real estate transactions.

Commercial Real Estate

Commercial real estate can encompass a large range of properties, including offices, retail stores, restaurants, franchises, hotels, warehouses, and factories. These properties are typically used for business purposes, such as for selling products or providing a service, although they can also be used for housing purposes, such as a commercial housing development.

Commercial real estate transactions can be very complicated and may frequently require the assistance of an experienced real estate attorney. There are numerous considerations to have when buying, selling or investing in commercial property, such as zoning, environmental regulations, legal requirements, and tax implications. A great real estate attorney can help you to navigate the many challenges that come with getting involved in commercial real estate.

What Does a Commercial Real Estate Lawyer Do?

Commercial real estate lawyers do many of the same things that attorneys focusing on residential real estate do—they work with buyers and sellers, manage title issues, review and draft contracts, and negotiate with lenders. But what makes a commercial real estate lawyer different from a residential real estate lawyer?

The main difference between these two real estate law specialties is that lawyers practicing commercial real estate law need to have knowledge in a few areas of law which are specifically related to businesses. Commercial real estate law usually involves more complex regulations and laws than residential real estate laws, and commercial real estate developers, investors and landlords have a lot more information and laws they need to be aware of than your typical homeowner.

This is where a great commercial real estate lawyer comes in. A great commercial real estate lawyer has ample experience with commercial real estate, exceptional knowledge on the local market and beyond, and knows how to combine that experience and knowledge with excellent people and communication skills to solve any real estate issue, no matter how complex. No matter how experienced a business owner or commercial real estate developer you are; it is never a bad idea to consult an experienced commercial real estate attorney to ensure that you are operating with optimal security and shielding yourself from liability.

As to what services a commercial real estate attorney typically offers; this can obviously vary widely depending on the attorney, firm, geographic location, and market. For instance, some attorneys may specialize in just one or a few key practice areas, while other attorneys may be more of a one-stop-shop for all your real estate needs. As to what services our firm offers for commercial real estate purposes, being a full-service firm, we’re proud to consider ourselves a true one-stop-stop for all your commercial real estate needs. The below are just some of the services we offer for commercial real estate purposes.

Our Commercial Real Estate Services Include:

  • Real estate litigation: Even if you do nearly everything right as a business owner or real estate developer, there may become times where a dispute arises, and litigation is made necessary. While litigation can be incredibly stressful for those dealing with it, a great commercial real estate attorney will ease the minds of their clients even when handling the most complex cases.
  • Commercial buyer/seller representation: Whether you’re buying or selling a commercial property, it’s important to ensure that your interests are protected, and that the transaction is being conducted legally. This is especially key when dealing with commercial properties.
  • Commercial lease drafting and review: If you’re looking to rent out a commercial property and try your hand at being a landlord, you’ll want to make sure your lease is airtight. Check out our previous blog on commercial leases to learn more.
  • Purchase and sale agreements: A purchase or sale agreement is a contract which spells out the terms and conditions of a real estate transaction. With an expensive commercial property, it is especially paramount that these agreements are legally sound and in your best interest.
  • Loan agreements and disclosures: As a real estate developer or investor putting your hard-earned money into a property, you want to ensure that your investment is well-placed and eventually comes to fruition. A great commercial real estate attorney can draft a loan agreement or disclosure that looks out for you or review a loan agreement or disclosure to makes sure it aligns with your interests.
  • Land use and building code documents: A commercial real estate attorney can help you to navigate the complexities of the Florida Building Code and ensure that your documents are legally sound.
  • Confidentiality and non-disclosure agreements: As a full-service law firm, our attorneys also practice business and employment law. If you’re looking to start a real estate business, such as a brokerage, or if you’re negotiating a deal with another business owner, we are happy to assist you in drafting confidentiality and non-disclosure agreements.
  • Fiduciary duty legal counsel: Beyond drafting and reviewing documents and going to court, some of the most important service any attorney can offer is preventative legal advice or counsel. This skill is exceptionally important when it comes to commercial real estate, as there are typically more regulations and laws associated with commercial real estate than residential real estate. You’ll want to make sure that you are operating with optimal legality and following all requirements.
  • Commercial lease negotiation: Having trouble drafting a lease that all parties will agree to? A good commercial real estate attorney could be a great asset to you. Our commercial real estate attorneys are not only skilled in drafting and reviewing documents but are also exceptional at negotiating with business partners and tenants.
  • Commercial development: Being a full-service firm, our attorneys can advise you in regard to all aspects of your real estate business, from general business advice, counsel on employment law, and more. Hiring a full-service firm to fulfill your commercial real estate needs ensures that all your bases are covered at all times.
  • Escrow services: A commercial real estate attorney can handle closings from start to finish, including the escrow process. You’ll need an attorney you can trust to safeguard your escrow deposit. An attorney can also assist in the event of any escrow related disputes.

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola, and West Orange counties to assist you.

Real estate is an essential part of the Florida economy. Whether you are a large developer or simply buying a home, you need real estate counsel. The Orlando Law Group’s attorneys handle virtually all aspects of real estate. We represent individuals by reviewing their leases as well as contracts. We also represent developers, contractors, lenders, and owners of commercial properties.

Why Hire a Florida Real Estate Attorney?

To start, why should you hire a real estate attorney? There are countless reasons why one might want to hire an attorney, but here are a few of the most common. First, hiring an attorney to handle your real estate matter will ultimately save you time and money. A real estate attorney will safeguard you, your clients and their investment by thoroughly reviewing all legal documentation, handling negotiations keeping you and your clients informed throughout the process and asking the questions you may not know to ask. Hiring a real estate attorney can also give you clarity and peace of mind throughout the transaction. Hiring an attorney to review all agreements and contracts and assist in negotiations will ensure the maximum level of transparency and comfort for your clients and can also grant you the peace of mind that your transaction is legally sound and has been reviewed thoroughly by a professional.

A real estate attorney also has valuable experience and knowledge from working in the field that simply cannot be recreated. Our attorneys have the institutional knowledge of working daily in the industry and have their fingers on the pulse of the local and state laws. Especially for those of you with unique real estate situations, it’s important to have the legal support to mitigate any risks that could delay, if not jeopardize, your real estate purchase. Lastly, hiring a real estate attorney can also expedite the process of your transaction significantly. Hiring a Florida real estate attorney not only serves to protect each party’s interests but also expedites the entire process and helps to streamline the contract negotiation, the closing process, securing title insurance and communicating with lenders.

The Importance of Prevention in Real Estate Law and for Real Estate Agents

Often, we turn to lawyers as a last resort – after the contract has been signed, or when a dispute is already out of control. However, good legal advice is one of the greatest preventative measures a lawyer can provide. Not only can it save you money in the long run, but it can also save you from unpleasant difficulties later.

At The Orlando Law Group, you can be sure that your attorney possesses both a sharp, experienced legal mind, and a friendly smile that will welcome and comfort you. What’s more, we are serious about preventative legal tactics, working to solve issues for our clients before they blow up into legal messes. Simply put, we are here for you, and we have your back at all times!

A successful Florida residential real estate transaction is more than mere document preparation. Buyers and sellers alike may encounter any number of hiccups including, but most definitely not limited to, disclosures, financing, findings as a result of property inspections, dealing with property owner association requirements and title insurance.

As a real estate agent, it is wise to have a go-to Florida real estate attorney to ensure that you and your clients are protected and are properly informed when making pertinent decisions. While conducting a residential real estate transaction in Florida, only an attorney can provide legal guidance and advice that is truly in your best interest.

Legal Connections in Real Estate – Why Hire a Full-Service Firm?

  • Diverse Clientele: Our firm provides legal assistance to a wide variety of clients with different needs and preferences, meaning our team is well-equipped to handle the specificities of your situation.
  • Multiple Perspectives: If your attorney needs an objective perspective from a different legal professional, they can get that from within the firm. You can’t get that kind of flexibility from a boutique lawyer, who would have to hire another attorney for a second opinion.
  • One-Stop-Shop: At The Orlando Law Group, we work as a team in all endeavors. With each attorney having experience in a multitude of fields, we can provide a comprehensive solution for our clients.
  • Flexibility and Creativity: As a full-service firm, each member of our team has a diverse skillset and base of knowledge. With these assets, we are able to navigate through each case with flexibility and provide creative solutions for our clients.
  • Adaptability: Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.

A legal challenge can easily stretch across multiple practice areas. Real Estate Law, for example, can stretch into business law, family law, and estate planning quite easily. As a full-service firm, we are well-equipped to tackle any legal challenge involving real estate, regardless of how many other disciplines the challenge involves. We offer a wide range of services to meet the needs of the Florida real estate community, whether it be for residential or commercial real estate. Here are a few examples of some connections real estate law can have with other areas of law:

  • Family Law: A divorce or separation can often involve complex real estate transactions or the division of assets, including property.
  • Probate Law: When a person passes away, you may find yourself in a situation where the deceased person owns a piece of property and the heirs of that person want to sell it, but probate must be administrated prior to this occurring.
  • Business Law: Business law can easily relate to real estate law when commercial property transactions are involved, or a business is buying or selling a property.
  • Civil Litigation: In some situations, disputes cannot be fully solved through negotiation and may require complex civil litigation to address.

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

February 1, 2023/by The Orlando Law Group

Why You Need a Real Estate Lawyer

All posts, Blog, Real Estate

Real estate is an essential part of the Florida economy. Whether you are a large developer or simply buying a home, you need real estate counsel. The Orlando Law Group’s attorneys handle virtually all aspects of real estate. We represent individuals by reviewing their leases as well as contracts. We also represent developers, contractors, lenders, and owners of commercial properties.

Why Hire a Florida Real Estate Attorney?

To start, why should you hire a real estate attorney? There are countless reasons why one might want to hire an attorney, but here are a few of the most common. First, hiring an attorney to handle your real estate matter will ultimately save you time and money. A real estate attorney will safeguard you, your clients and their investment by thoroughly reviewing all legal documentation, handling negotiations keeping you and your clients informed throughout the process and asking the questions you may not know to ask. Hiring a real estate attorney can also give you clarity and peace of mind throughout the transaction. Hiring an attorney to review all agreements and contracts and assist in negotiations will ensure the maximum level of transparency and comfort for your clients and can also grant you the peace of mind that your transaction is legally sound and has been reviewed thoroughly by a professional.

A real estate attorney also has valuable experience and knowledge from working in the field that simply cannot be recreated. Our attorneys have the institutional knowledge of working daily in the industry and have their fingers on the pulse of the local and state laws. Especially for those of you with unique real estate situations, it’s important to have the legal support to mitigate any risks that could delay, if not jeopardize, your real estate purchase. Lastly, hiring a real estate attorney can also expedite the process of your transaction significantly. Hiring a Florida real estate attorney not only serves to protect each party’s interests but also expedites the entire process and helps to streamline the contract negotiation, the closing process, securing title insurance and communicating with lenders.

The Importance of Prevention in Real Estate Law and for Real Estate Agents

Often, we turn to lawyers as a last resort – after the contract has been signed, or when a dispute is already out of control. However, good legal advice is one of the greatest preventative measures a lawyer can provide. Not only can it save you money in the long run, but it can also save you from unpleasant difficulties later.

At The Orlando Law Group, you can be sure that your attorney possesses both a sharp, experienced legal mind, and a friendly smile that will welcome and comfort you. What’s more, we are serious about preventative legal tactics, working to solve issues for our clients before they blow up into legal messes. Simply put, we are here for you, and we have your back at all times!

A successful Florida residential real estate transaction is more than mere document preparation. Buyers and sellers alike may encounter any number of hiccups including, but most definitely not limited to, disclosures, financing, findings as a result of property inspections, dealing with property owner association requirements and title insurance.

As a real estate agent, it is wise to have a go-to Florida real estate attorney to ensure that you and your clients are protected and are properly informed when making pertinent decisions. While conducting a residential real estate transaction in Florida, only an attorney can provide legal guidance and advice that is truly in your best interest.

Legal Connections in Real Estate – Why Hire a Full-Service Firm?

  • Diverse Clientele: Our firm provides legal assistance to a wide variety of clients with different needs and preferences, meaning our team is well-equipped to handle the specificities of your situation.
  • Multiple Perspectives: If your attorney needs an objective perspective from a different legal professional, they can get that from within the firm. You can’t get that kind of flexibility from a boutique lawyer, who would have to hire another attorney for a second opinion.
  • One-Stop-Shop: At The Orlando Law Group, we work as a team in all endeavors. With each attorney having experience in a multitude of fields, we can provide a comprehensive solution for our clients.
  • Flexibility and Creativity: As a full-service firm, each member of our team has a diverse skillset and base of knowledge. With these assets, we are able to navigate through each case with flexibility and provide creative solutions for our clients.
  • Adaptability: Like many industries, the legal world is subject to change and improvement over time. New laws are created, and we are responsible for understanding the fine details on how they affect our clients. What makes us successful is our ability to learn these new laws and understand how they apply to current and future clients.

A legal challenge can easily stretch across multiple practice areas. Real Estate Law, for example, can stretch into business law, family law, and estate planning quite easily. As a full-service firm, we are well-equipped to tackle any legal challenge involving real estate, regardless of how many other disciplines the challenge involves. We offer a wide range of services to meet the needs of the Florida real estate community, whether it be for residential or commercial real estate. Here are a few examples of some connections real estate law can have with other areas of law:

  • Family Law: A divorce or separation can often involve complex real estate transactions or the division of assets, including property.
  • Probate Law: When a person passes away, you may find yourself in a situation where the deceased person owns a piece of property and the heirs of that person want to sell it, but probate must be administrated prior to this occurring.
  • Business Law: Business law can easily relate to real estate law when commercial property transactions are involved, or a business is buying or selling a property.
  • Civil Litigation: In some situations, disputes cannot be fully solved through negotiation and may require complex civil litigation to address.

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

February 1, 2023/by The Orlando Law Group

Due Diligence in Real Estate – What Is It, and Why Is It Important to Understand?

All posts, Blog, Real Estate

When you are purchasing a new home, piece of land or commercial property in Florida, it’s a good idea as a real estate buyer to have a lawyer helping you. Your goal as a homebuyer is to get what you paid for. Real estate can be highly complex, especially when dealing with a commercial property, and a good real estate attorney can be an invaluable asset in ensuring that your real estate transaction is an overall success. Your real estate lawyer will help prepare and negotiate a purchase agreement, help you through the buyer’s due diligence inspection period, and then review deed, title insurance commitment and other closing documents your behalf, to ensure that everything that is being done throughout the transaction is in your best interest.

What Is the Due Diligence Inspection Period in Real Estate?

The due diligence period in a real estate contract is defined as a buyer’s obligation to thoroughly investigate a property within a specified time to determine whether the buyer remains satisfied with the property before finalizing the purchase. In real estate, due diligence includes reviewing documents and contracts, thoroughly inspecting the property, and evaluating risks associated with a property or piece of land prior to purchasing. It is basically “doing your homework” prior to purchasing.

When conducting a real estate transaction, the due diligence period typically starts as soon as a purchase and sale agreement has been accepted by both the buyer and seller, and all necessary escrow deposits have been made. During the due diligence period, it is the responsibility of the buyer to conduct all necessary inspections and review all important documentation to ensure that the property they are looking to purchase is without major defects and that they are getting their money’s worth.

A good real estate attorney can assist you in preparing and negotiating a contract for purchase of the real property that includes a due diligence inspection period with broad wording to allow you to check for obvious, or patent, and non-obvious, or latent defects. For reference, a patent defect in real estate refers to a flaw, dangerous condition, or other deficiency which is reasonably apparent to an ordinary person and can be seen with the naked eye. For example, if you walked into a house and saw immediately that the house is filled with water due to a leak, that would be considered a patent defect. In contrast, a latent defect refers to a hidden or concealed defect; one which could not be discovered by any ordinary person inspecting the property. One of the most common latent defects which has become a hot topic in recent years is hidden asbestos in the ceiling of a property, which can be highly dangerous if not discovered. Patent or latent defects can be located in the real property itself, land, air or water. They could be environmental, structural, mechanical, electrical, or otherwise. It’s important to inspect the property for all areas where there could be defects prior to buying.

The Due Diligence Period in Residential Real Estate Versus Commercial Real Estate

There is an ancient Latin saying, “Caveat Emptor,” which means “Let the buyer beware.” This saying means that the seller was not obligated to tell the buyer about defects known by the seller. Essentially, this term places all responsibility to inspect a property for potential defects with the prospective buyer.

With regard to residential real estate, this ancient rule no longer applies. As such, a residential real estate purchaser is not necessarily required to inspect a home prior to purchasing. However, as a residential homebuyer, it is still important to inspect a property prior to purchasing to ensure that your property is without defects, which will save you valuable time and money (and not to mention a headache) down the road. For instance, sellers are not obligated to tell you about defects they are not aware of. Thus, if you fail to inspect the property before purchasing, you may discover something the seller didn’t catch, forcing you to try to fix the defect yourself, with your own wallet. There are also cases where a seller may not be entirely truthful about the condition of a property, in the hopes of selling the property faster or for a higher price. Don’t leave your destiny in someone else’s hands by choosing not to have your property inspected prior to purchasing, and make sure to consult a real estate attorney who will look our for your best interests during the due diligence period.

However, the principle of “Let the buyer beware” still applies in Florida to commercial real estate. Furthermore, there are also many more regulations and laws associated with commercial real estate. This is because commercial real estate properties are used to make a profit and thus involve tenants or employees, and so it’s incredibly important that commercial properties be structurally sound and safe for their inhabitants. It is also important to note that while residential real estate purchasers have several consumer protection laws and remedies available to them in case of an undiscovered defect, commercial property purchasers are afforded far less leeway. As such, it is even more important for commercial real property buyers to do their due diligence inspections, and thus equally important for commercial real property purchasers to enlist the help of a seasoned commercial real estate attorney.

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola, and West Orange counties to assist you.

February 1, 2023/by The Orlando Law Group

Planning to Buy or Sell Your Unit Within a Community Association? You’ll Need an Association Estoppel

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Real Estate

Most owners in Florida know that when they want to buy or sell their unit or house that they need to contact the community association, or its attorney, to get an estoppel letter.  Both the Florida Condominium Act and Florida Chapter 720 regarding homeowners’ associations specifically devote sections to estoppel letters a/k/a certificates of assessments. See 718.116(8) and 720.30851.

First, what is an estoppel, and what does the term “estoppel” mean?

In the broad legal sense, an estoppel is “the principle that precludes a person from asserting something contrary to what is implied by a previous action or statement of that person or by a previous pertinent judicial determination.” You can essentially think of it as a fact checker which prevents someone from asserting something differently than what was previously stated. This concept is particularly important in real estate; specifically in the business of buying and selling real estate.

It is key to note that there are two main types of real estate: commercial and residential. Commercial real estate is any property that is used for business purposes, whereas residential real estate refers to any property that is used for housing or living purposes.

Commercial Real Estate

Commercial real estate can encompass a large range of properties, including offices, retail stores, restaurants, franchises, hotels, warehouses, and factories. These properties are typically used for business purposes, such as for selling products or providing a service, although they can also be used for housing purposes, such as a commercial housing development.

Residential Real Estate

Residential real estate typically refers to single-family homes, townhouses, and condos. These properties are generally used for housing purposes, although they can also be used for business purposes (such as a work-from-home office).

If a residential property is located within a community association like a homeowner’s association (HOA) or a condominium owner’s association (COA), an association estoppel is a requirement for issuing a title policy on all association-governed homes because the information it contains can impact interest in the property.

But what is an estoppel letter/certificate, and why is it important to me?

An estoppel certificate is a letter from the association that states any amounts due and owing for fees and/or assessments for a particular unit or house that is valid for 30 days from the date of the letter. The reason it is important is that once you purchase the property, you become liable for all past and present debts on that property.

Although there is no statutory form of an estoppel letter or form, §720.30851 Fla. Stat. requires that the certificate be signed by an officer or authorized agent of the association stating all assessments and other moneys owed to the association by the parcel owner or mortgagee with respect to the parcel. However, it is good practice to include or request within the estoppel letter/certificate: the name of the association; the name of the unit/parcel owner; description of the property; the total amount owed to the association; the date through which that total amount is owed; instructions on where to send the payment and signature of an officer of the association or authorized agent. Typically, title companies will have their own standard form that they use specifically for estoppels, which they will want filled out along with the estoppel letter/certificate.

Upon request of the estoppel letter, the homeowners’ association may charge a reasonable fee for the preparation of the letter, however, an interesting caveat of §720.30851(3) Fla. Stat. states that if the certificate is requested in conjunction with the sale or mortgage of a parcel, but the closing does not occur and no later than 30 days after the closing date for which the certificate was sought the preparer receives a written request, accompanied by reasonable documentation, that the sale did not occur from a payor that is not the parcel owner, the fee shall be refunded to that payor within 30 days after receipt of the request. The refund is the obligation of the parcel owner, and the association may collect it from that owner in the same manner as an assessment as provided in this section.

As with any legal transaction, knowledge is power. According to Movement Mortgage, approximately 1,000 people move to Florida each day. Many of those people come from areas that do not have homeowners’ associations and new Florida residents are often surprised to learn that even though the homeowner may be up to date on their mortgage payments, that failure to pay homeowners’ fees and assessments can lead to foreclosure as well, regardless of your current mortgage status.

If you are considering purchasing property governed by and located within a homeowners’ association or if you already own a home within a homeowners’ association and find yourself in need of legal advice regarding a dispute with the association, the knowledgeable attorneys at The Orlando Law Group, PL can help. The attorneys at The Orlando Law Group also have ample experience preparing estoppels ourselves, and if you are a Board member, we may be able to assist your Association in preparing estoppels for properties within your Community Association.

The attorneys at The Orlando Law Group represent property owners, prospective property owners, developers, contractors, lenders, investors, real estate agents, brokers, landlords, tenants and more throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are dealing with a real estate issue or looking for some preventative real estate legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

February 1, 2023/by The Orlando Law Group

The Orlando Law Group’s Jennifer Englert Named a 2023 Women Who Means Business

All posts, Blog, News, OLG in the News, Personal

OLG founder’s entrepreneurial spirit recognized in annual awards contest

It is no secret The Orlando Law Group’s founder Jennifer Englert is a woman who means business. As such, this year the Orlando Business Journal is recognizing her as one.

Englert is one of 21 women being recognized by the publication for accomplishments in business and the community. The list includes some of the most accomplished women in Central Florida.

“There are so many women who are deserving of this award throughout our region I am just honored to be a part of this year’s class,” Englert says. “The impact of women, especially the women who join me this year, can not be underestimated in manner.”

Englert founded The Orlando Law Group in 2009, initially being a firm that would be a home for women lawyers. The firm now employees several male attorneys, but still takes pride in being a firm focused on the entire life of an attorney, not just the billable hours.

In addition, Englert is an owner of several companies separate from the law firm, including a title company, a company focused on energy-efficient lighting and a company focused on workforce issues in the manufacturing industry.

According to the announcement in the Orlando Business Journal, “These individuals have gone above and beyond in their respective roles, driving business success, industry growth, workforce development and community advancement. The honorees are executives based in Central Florida who were selected due to their business accomplishments, community involvement and personal.”

One of Englert’s strengths was her work in the community serving in the following roles in the community, in addition to helping found the East Orlando Chamber Foundation:

  • Seminole County Chamber: chair-elect and pro bono legal counsel
  • East Orlando Chamber of Commerce: board member and pro bono legal counsel
  • Avalon Park Kiwanis: vice president
  • Matthews’ Hope: board member and legal counsel
  • United Against Poverty: board member
  • Greater Orlando Builders Foundation: vice president
  • Orlando Health Foundation: board member
  • Innovation and Entrepreneurship Program at Full Sail University: advisory council member.

“From the start of The Orlando Law Group, I have found the more you help the community improve, the more your business will be successful,” Englert says. “I encourage anyone in business to find their passion and use their skills to help others.”

The full list of 2023 Women Who Mean Business can be found here. Orlando Business Journal will be recognizing them at an event on March 30 and running a special section featuring all of the women in its March 31 edition.

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For more information, contact Alan Byrd, Alan Byrd & Associates, 407-415-8470, [email protected]

About The Orlando Law Group: Founded in 2009, The Orlando Law Group is a full-service law firm with 11 attorneys in four offices in Orlando, Winter Garden, Altamonte Springs and Lake Nona. The firm specialized in a broad range of practice areas specifically for individuals and businesses, particularly on business law, family law, personal injury law, personal finance and estate planning law and much more. For more information, please visit TheOrlandoLawGroup.com

January 15, 2023/by The Orlando Law Group

Can I use Steamboat Willie in my Marketing?

All posts, Blog, Business Law

Right before the New Year, the New York Times wrote an extensive article about Mickey Mouse and how the copyright for the historic Steamboat Willie will most likely expire at the end of 2023.

When that happens, the Steamboat Willie version of Mickey Mouse will become public domain, meaning anyone can use that version of the cartoon character and the film without paying any licensing fees.

Of course, nothing is settled in stone. The last time this issue came up, the Walt Disney Company worked with Congress to extend copyright protections by 20 years.

Most businesses cannot just convince Congress to change the rules on copyrights. So, this is a great case to watch as this issue unfolds. It is a good way to understand how people can and cannot use your logo, your graphics, your mascot, your company name.

And it is a great reminder to check with The Orlando Law Group for a review of all your intellectual property has the right protections to keep your brand pure.

The Orlando Law Group can help entrepreneurs and business owners in in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida with all their intellectual property issues, along with any other general business issues.

Let us give a quick overview of intellectual property protections.

First, it is critical to understand the differences between the different types of intellectual property protections. They are often confused with each other, even though all of them can be critical for your long-term success.

For a more detailed look at the difference between trademark and copyright, please review this article we shared a few years ago.

A copyright protects first use of art

Maybe you wrote a jingle for your business or commissioned a painting of your restaurant. Maybe you created a cartoon character mascot. Those are all covered by copyright laws. They are original art and cannot be used by a third-party for profit.

When it is produced, there is a copyright applied, but you must register the copyright with the federal government for The Orlando Law Group to fight to receive any protection from the courts.

A patent protects an invention

If your company has developed the next big thing, you will need to file for a patent. This protects your product, your chemical reaction, your advancement on the widget and much more.  To receive a patent, you will need to show that your invention is “new, unique and usable.”

A trademark protects your brand

Here is where you protect your name and your logo, your company colors and more. The goal with this type of protection is to avoid confusion by consumers and eliminate companies basically calling themselves the same name.

One of the difficulties with trademarks is there are two types of trademarks: word marks and design marks. The word mark protects your name. The design mark protects your logo. Both can be essential.

What do I need to do to protect my brand?

There are a couple of things you can do to protect your brand, especially when you are first starting your business. One of the things we do for any new business is do a search for trademarks, especially when naming restaurants.

The United States Patent and Trademark Office makes a basic search relatively simple through the TESS database. Performing an individual search can give you basic information, but it is still critical to have an attorney review the results. After all, there are 35-word marks for “Mickey Mouse.” Not all will apply to you and there may be an opportunity for you to use your dream name, even if it appears in TESS.

Of course, if your name is already trademarked in your industry, do not use it. Chances are, you will have to rename your business down the road.

Once you have applied, it is important to aggressively defend your protection. Often times, a simple demand letter can stop the possible infringement. Sometimes you will need to file a lawsuit for protection.

The key here is that you are showing others – especially future courts – this is your brand and you will protect it. The longer you allow others to use your brand, the easier it is for that person to claim it is in the public interest.

You do not want that to happen!

That is why you see so many companies being very active in protecting their trademarks. Just look up “trademark lawsuit” by just about any company and you will find multiple news reports of lawsuits.

Of course, this also means that if you want to get close to an established trademark, you are going to be prepared for a fight. Here is an example of where Apple sued just about anyone who tried to file a trademark using an apple. In fact, they filed objections to 215 trademark filings that were close to the logo of the iPhone.

They are counting on people not fighting back.

But that is what The Orlando Law Group is here for. We will fight to protect your company’s intellectual property, from filing for protection and to protect your brand.

And if you want to use Steamboat Willie in your 2024 marketing campaign within the legal format, we will fight for your right to do just that!

If you are looking to protect your intellectual property in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, or Kissimmee, we are here to help you with a full team of attorneys who care about you and your business and will work for the best possible outcome.

If you would like to schedule a consultation for a business issue like the ones described earlier, this information is in case you ever find yourself or a loved one needing to use it.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

January 15, 2023/by The Orlando Law Group

Miya’s Law, Decreased Workers’ Comp Rates and Minimum Wage Increase – Florida Legal Changes for Business Owners to Look Out For in 2023

All posts, Blog, Business Law, Legal Commentary, News

Happy new year to all of our wonderful clients, team members and more! The coming of a new year brings with it excitement, new beginnings, and perhaps most importantly, many changes. With the dawning of the year 2023, there are many key changes to Florida state law which took effect on January 1.

Several of these changes are likely to affect business owners in a variety of ways.

As a business owner, it is important for you to have knowledge about these changes and understand how these changes may affect you and your business in the new year. Read on to learn more about what specific changes will be taking effect, and how these changes may affect your business.

Disaster Assistance:

In response to the devastating 2021 collapse of the Champlain Towers South building in Surfside, Florida, state lawmakers authorized the refund of ad valorem taxes, more commonly known as property tax rebates, when residential properties are rendered uninhabitable for a minimum of 30 days by disasters.

During the December special session, state lawmakers also passed SB 4-A to make similar property tax rebates available to property owners who sustained damage in Hurricane Ian and Hurricane Nicole this past Fall.

Read the full text of SB 4-A here: https://www.flsenate.gov/Session/Bill/2022A/4A.

How does this change affect my business?

If your business suffered damage during Hurricane Ian or Hurricane Nicole this past Fall, you may be able to receive a tax refund. Property owners will be able to apply to county property appraisers between January 1 and April 1, 2023.

Property Insurance:

During the December special session, Florida lawmakers approved the end of the assignment of benefits for property insurance, which has long been considered controversial. The practice of the assignment of benefits has homeowners signing over claims to contractors, who then pursue payments from insurers.

Essentially, part of a policyholder’s insurance benefits is transferred to a third-party. Insurers have long argued that this practice leads to unnecessary repairs being performed along with increased repair costs, as well as increased litigation costs, which, all together, then lead to higher insurance premiums.

Read the full text of SB 2-A here: https://www.flsenate.gov/Session/Bill/2022A/2A

How does this change affect my business?

Business owners will no longer be able to utilize the practice of the assignment of benefits, which could lead to lower insurance premiums. This change could particularly impact those in the business of commercial real estate or landlords. The prohibition on assignment of benefits (SB 2-A) will apply to policies issued on or after January 1, 2023.

Workers’ Compensation Rates:

An average 8.4 percent decrease in workers’ compensation insurance rates is taking effect this January, making this the sixth consecutive year that average workers’ compensation rates have decreased.

How does this change affect my business?

This change is a positive one for business owners, as it means lower insurance costs for employers.  The decrease applies to both new and renewal workers’ compensation insurance policies effective in Florida as of January 1, 2023.

Miya’s Law:

Earlier this past year, Florida lawmakers passed a law (SB 898) that requires apartment landlords to conduct thorough background checks on all employees. Employees must also maintain a system for handling and logging the issuing of keys.

The bill is referred to “Miya’s Law” in honor of 19-year-old Miya Marcano, a student who went missing from her Orlando apartment in September of 2021 and was found dead a week later. The killer worked as a maintenance worker at Marcano’s apartment complex.

Read the full text of SB 898 here: https://www.flsenate.gov/Session/Bill/2022/898

How does this change affect my business?

This change will affect commercial real estate business owners and landlords in general. Landlords will need to conduct thorough background checks on all employees and ensure there is a system in place for the handling and issuing of keys, to secure the safety of their tenants.

Minimum Wage Increase:

In November of 2020, Florida voters approved increases to the state’s minimum wage, which will gradually increase from the current $8.65 an hour to $15 an hour by September of 2026. To comply with the law, employers must follow the below hourly wage schedule for non-tipped employees:

Effective Date

January 1, 2021

September 30, 2021

September 30, 2022

September 30, 2023

September 30, 2024

September 30, 2025

September 30, 2026

Florida Minimum Wage

$8.65

$10.00

$11.00

$12.00

$13.00

$14.00

$15.00

How does this change affect my business?

While this change will not directly affect your business until September 30, 2023, it is important for business owners to plan for increasing their wages for non-tipped employees to $12.00 an hour on that date.

Uniform Commercial Code:

Bill SB 336 updates portions of the Uniform Commercial Code, or UCC. The UCC is “a set of laws, adopted by all fifty states, governing and providing uniformity in commercial transactions in the United States.” This bill protects the free transfer of certain business interests, exempting ownership and parts of ownership interest.

Read the full text of SB 336 here: https://www.flsenate.gov/Session/Bill/2022/336

How does this change affect my business?

This change should be a good one for business owners as it hopes to remove potential conflicts with Article 9 of the UCC, which “governs secured transactions, meaning transactions involving the granting of credit secured by personal property (‘collateral’), where the creditor may take possession of the collateral if the debtor defaults on the loan.” Essentially, this change protects the transfer of business interests.

Electronic Filing of Taxes:

Lawmakers have approved a bill which would lower Florida’s tax filing and payment threshold in 2023, in the hopes of creating more cost savings and cutting down the number of papers returned and checks received. Currently, taxpayers must “file returns and remit payments electronically when the amount of taxes paid in the prior state fiscal year was $20,000 or more.” With the new law, the payment threshold will be lower to $5,000 or more.

Read the full text of SB 2514 here: https://www.flsenate.gov/Session/Bill/2022/2514

How does this change affect my business?

This should be another good change for business owners, as it will make it easier for business owners to file their taxes electronically.

The attorneys at The Orlando Law Group represent both experienced and new business owners throughout Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida. Whatever your level of business experience, the lawyers at The Orlando Law Group are here for you.

If you are dealing with a business issue or looking for some preventative business legal services, please reach out to our office at 407-512-4394, fill out our online contact form.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola, and West Orange counties to assist you.

January 13, 2023/by The Orlando Law Group

Independent Contractor Laws Changing this Year (2023)

All posts, Blog, Business Law, Legal Commentary, News

During the pandemic, our country saw a shift from the traditional 9 -5 employees to the gig economy, with companies looking at hiring independent contractors instead of employees.

We have seen entire companies, like Uber and Lyft, where the business model is structured with independent contractors. But we also see businesses utilize independent contractors for CFO positions, for marketing, public relations and for sales.

For both parties, the independent contractor relationship can be beneficial. For individuals, it provides freedom for work. An independent contractor can work when they want and for who they want. There is very little control the company can exert over the independent contractor.

From a business perspective, the tax burden is significantly lower as you do not withhold any taxes or pay any employment taxes, and the independent contractor is responsible for equipment, such as computers and phones.

While there are advantages, a miscalculation can be serious. If you treat an independent contractor like an employee, you could be responsible for a significant payout for wages and taxes if the contractor decides to take the case to court.  The state can also pursue your business for other fees.

It is always better to take preemptive steps to ensure the people working for your business are properly classified. We urge you to have The Orlando Law Group review your contractors and their duties to make sure they are within the current law. We will create contracts that outline the responsibilities of each party and the goals of the contract. We will create an employee manual that covers the difference between the employee statuses and will provide rules to the extent that you can for contractors.

Unfortunately, however, what determines who is an independent contractor has changed significantly over the past couple of years by the United States Department of Labor.

The Orlando Law Group is carefully watching these developments to make sure our clients are protected. If you need help with independent contractors in Orlando, Winter Garden, Altamonte Springs, St. Cloud, Kissimmee, Sanford or throughout Central Florida, we are here to help you with a full team of attorneys who are business owners themselves.

In March 2021, the federal government issued new rulings detailing a set of factors that come into play when determining whether a worker is an employee or an independent contract. However, case law in this issue has been set over decades of cases that the federal government needs to look at the totality of the case and that all factors are equal.

The current orders give precedence to some factors over others. Shortly after issuing the new regulations, they realized it would be confusing for businesses and would take years to get new case law that allows for some factors to have more importance than others.

The result? New regulations will be enacted in some format during 2023.

One thing that has not changed is the overriding theme of what constitutes an employee or an independent contractor: economic dependence is the ultimate inquiry for determining whether a worker is an independent contractor or an employee.

This year, the Department of Labor has proposed six factors, all being held equally in an “Economic Reality Test.” The factors are:

  1. Opportunity for profit or loss. If the individual can control its profit or loss based solely on the skills, management and initiative of the individual. For instance, an independent contractor can hire others to do the work in the contractor. An employee cannot.
  2. Investments by the Worker and the Employer. This is straightforward. If the company is providing the equipment and other items needed to complete a job, like design software for a graphic artist, the individual is an employee. An independent contractor provides their own tools for their work.
  3. Degree of Permanence of the Work Relationship. Is the relationship temporary or indefinite? For employees, there usually is no end date and can be terminated at any time by either party. Usually, an independent contractor is only engaged for a specific period.
  4. Nature and Degree of Control. The new rule could be very specific for this one. Do you have substantial control over things like “setting schedules, selecting projects, controlling workloads, and affecting the worker’s ability to work for others?” If so, the person is an employee, not an independent contractor.
  5. The Extent to Which the Work Performed is an Integral Part of the Employer’s Business. It’s difficult to say what is truly integral to the company business, but you could think of it as if you removed the employee from the company, how detrimental it would be to your bottom line and the ability to produce.
  6. Skills and Initiative. Does the work performed by the individual require specific skills and training? If so, do you provide that training to the individual? If you do, chances are that person is an employee, not an independent contractor.

While the federal government has ended public comment, these are not the final rules and they could change when the Department of Labor issues the final rulings. It is important for you to know the regulations on this subject are changing and you should be prepared to make any adjustments.

You can read significantly more details about the proposed rule change in the Federal Registry here. But, that is what The Orlando Law Group does for its clients.

The attorneys at The Orlando Law Group represent business clients in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, Sanford, St. Cloud, Kissimmee, and throughout Central Florida.

If you have a question about your employees and whether they are independent contractors, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both businesses and individuals alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

January 13, 2023/by The Orlando Law Group

Avoid the Scammers in Immigration

All posts, Blog, Community, Immigration, Legal Commentary

If you’re in the immigration process, you know the system is very tricky and can be confusing. Trying to get information from a government agency often seems futile. The forms to fill out can be more than three dozen pages long.

As such, the number of people looking to prey on that confusion is limitless. It’s very difficult to distinguish between people who are legitimate and those who are just trying to get as much money from you as possible.

Many people do not realize how bad the situation is until they receive that notice to appear for removal proceedings before an immigration judge because the forms they signed were not correct or a clear law was not followed. By hiring someone who is only out for your money, you could be tagged for removal even if you should qualify for a green card or work authorization.

The moral of the story is, make sure that you are using a knowledgeable attorney who has experience, and is someone that you can trust. Here are a few things to look out for when seeking professional assistance with your immigration matter:

  1. Make sure that the person you are meeting with is a licensed attorney not subject to any disciplinary proceedings. Ask for the attorney’s bar number and state/territory they are licensed in so you can look them up to make sure they are actually licensed and not subject to any disciplinary proceedings. If they are not a licensed attorney in good standing with their state bar or an accredited representative, they are not authorized to assist you with your immigration case. You can also check the Executive Office for Immigration Review (EOIR) list for all disciplined practitioners.
  2. Review the forms before signing and never sign a blank form. Make sure that you see the forms being submitted on your behalf before they are submitted. If you need a translator, ask for one or bring your own. Never sign a blank form or a blank piece of paper as you may not know what is submitted on your behalf and it could negatively impact your case.
  3. You should never be charged for the form itself. It’s OK to be charged for filing fees and for an attorney’s time to prepare forms, but you should never be charged for the actual form itself. This is a sign you are dealing with someone who is looking to take advantage of you. All forms are available online for free.
  4. Get a receipt for any payment made. If you think you were scammed, this is an essential piece of evidence for your case.
  5. Do not let your attorney keep your original documents. The attorney should always make copies of your personal documents, such as a passport or driver’s license, while you keep the original documents. If an original is needed, the immigration official will ask to see it at an interview or hearing. Do not submit originals.
  6. Do not trust anyone who claims to know about secret laws. Any new laws or regulations are public and all legitimate immigration attorneys will be up to speed on any new laws.
  7. Do not pay to be put on a waiting list: There is no such thing as a “waiting list,” but it sounds legitimate. It is not.
  8. Track your case. It’s important to understand immigration cases take a long time, but you can track your case with the U.S. Customs and Immigration Services. Your attorney will provide a receipt notice from the agency that can be used to see your status at USCIS.gov. Plus, if you are in removal proceedings, there is a hotline that can be used to track the status of your case and to see when you have your next hearing date.

If you try to use these and nothing comes up and the person you used to assist with your application or who says they are representing you in Court does not answer your calls within a reasonable amount of time (at least a week), you may need to get a second opinion.

  1. Watch out when using a notario publico. In many countries, the use of a notary public or notario publico is almost the same as using a lawyer. That is not the case in the United States. These individuals will charge excessive fees and could even subject you to removal from the United States.

Unfortunately, many people have been harmed by the use of notaries. They thought they were doing the right thing because it was an individual they trusted or they heard of someone who was able to get a work permit. They did not get a work permit and ended up in removal proceedings because an asylum application was filed or other type of application that the person did not qualify for.

One of the key issues is cost – but if the cost seems to be too good to be true, it almost always is. Yes, an attorney costs more upfront than a notario or another scammer.

However, in the long run, getting a competent Immigration attorney to assist you will save you money as you will need to pay for an attorney to fix the mess that is made, if it is fixable.

Remember, you do get what you pay for. Don’t become a cautionary tale. Many law firms will provide payment plans to assist those on a budget. Don’t let the cost of representation push you into making a decision that could negatively impact the rest of your life.

The attorneys at The Orlando Law Group represent immigration clients in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, Sanford, St. Cloud, Kissimmee, and throughout central Florida.

If you have a question about your Immigration case or whether you may have any immigration benefits available to you, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both businesses and individuals alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

February 1, 2023/by The Orlando Law Group

Immigrating to Central Florida after your Vacation

All posts, Blog, Community, Immigration

Every year, millions of visitors flock to Florida for vacation and for business. It’s one of the most popular destinations for travelers around the world. In Orlando, we’re the home to one of the world’s largest convention centers and, of course, a conglomeration of theme parks not found anywhere else.

If you’re a citizen of 40 countries listed here, you typically don’t need to get a visa to come for a short period to the United States as long as you register with the United States.

But for the rest of the world, a visa is required.

Like so many of us who already call Florida and Orlando home, many of the people who come to our city and state, like you, fall in love with the opportunities here, the natural beauty and the temperate weather. For them, The Orlando Law Group is here to help.

To be clear, there are processes that are required in this situation that everyone must follow and in no circumstance are we implying there is a way around those processes.

Of course, how an individual can turn a travel visa into a more permanent visa is extremely varied and unique to each person’s individual situation. Here are a few things to keep in mind.

  • If you are here from one of the 40 countries and are here on a waiver, you must return and work on your visa from your home country.
  • Almost all visas require you to apply and interview from your home country, so just staying in Orlando is not a good option
  • Always have the intention of returning to your home country. Yes, things may happen while you are here – you meet the love of your life or are offered a great job – but if the government thinks you were coming here to stay, you will be rejected.
  • Do not overstay your visa. Extending your visa is not that difficult compared to other immigration issues, but if you overstay your visa, you will almost certainly be denied any long-term solution.
  • Do not commit any crime while you are here, this includes things like driving under the influence or possessing narcotics, including marijuana.

So, let’s talk about some of the reasons why people want to say in the United States and how The Orlando Law Group can work to help their unique situation.

I met my soulmate while on vacation

Congratulations! It is truly wonderful to see people in love want to spend the rest of their lives together.

We certainly understand the desire to want to be together, it’s just important to understand that it takes time to ensure that it happens legally and without any complications down the road.

There could be an entire blog on how to get married to someone from another country as it is not an easy process like just showing up at the immigration office with a marriage license. Here’s a couple of key things you will need to know.

  • A K-1 visa, known as the “Fiancé Visa,” takes a long time to acquire. As of August 2022, the shortest wait time after you fill out the required documentation is around five months, extending to more than a year with some immigration facilities.
  • The start of the process is the I-129F form. It’s more than a dozen pages long and asks probing questions about you, your fiancé and even your parents!
  • You’ll need to compile a lot of documents, including a certificate from the police of any country you have lived for more than six months.

We often see couples who set a date for their wedding – they are excited to start this journey – only to find out it will take longer to settle the immigration process. We always recommend not placing any non-refundable deposits until you have at least started the process.

The U.S. State Department has a great – and long – list of what needs to be done to just acquire the fiancé visa here. As you can see, it is quite detailed, which is why you should reach out to The Orlando Law Group to help.

I was offered my dream job while on vacation

How exciting! Now, for the difficult part to ensure your visa is approved so you can move forward in your career.

Like most aspects of the law, it’s extremely difficult to directly say what you need to do without looking at your specific case. After all, there’s more than two dozen different types of visas that you may be eligible to receive to work in the United States.

Be sure to understand that you will need to return to your home country before moving to the United States and starting that job. Simply extending a tourist visa will not work. You’ll be subject to interviews at the consulate in your home country and will need to show you are maintaining a permanent residence in that country.

You’ll also need to have full support from your future employer. There are hoops they need to jump through as well to bring you to the United States. We advise you are open on your immigration status with a potential employer. We can help advise them too!

Finally, just like everything else in immigration, it’s not a quick process, although some consulates are faster than others. Your wait time could be more than a year to be processed in some places and with some visas. You can find a great tool to determine approximate minimum wait times at consulates across the world here.

I came for a convention and realized I need to expand my business into Central Florida

Orlando is often listed on many sites as being one of the premier places to do business in the world. Aside from the thriving tourism and entertainment industry, our community is also home to one of the top technology centers, along with the global capital of the modeling, simulation and training industry, supporting militaries worldwide. More than $6 billion flows through Orlando in that industry alone, every year.

Compared to other forms of immigration, expanding your business to the United States is significantly simpler. The United States wants foreign investment and job creation, so, in 1990, it created the EB-5 process to help promote this effort.

What does that mean for you? In its simplest terms, you’ll need to employ a minimum of 10 workers and invest at least $800,000 and you’ll be eligible for an EB-5 visa for your business and your family.

Now, there are other stipulations. There are new caps on EB-5 visas and the amount of money invested has changed very recently. Much of it is dependent on if you are investing in a targeted investment area.

Plus, while it is relatively simple, you cannot break the rules at the beginning of this article. If you overstay your visa and don’t follow the proper steps, you could lose your immigration status and any investment you made.

It’s critical to reach out to The Orlando Law Group, which has a practice devoted to business law in addition to our immigration practice.

If you are looking to extend a travel visa in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, or Kissimmee, we’re here to help you with a full team of attorneys who care about you and your circumstance and treat you with compassion while seeking the best possible outcome for you and your loved ones.

The attorneys at The Orlando Law Group represent clients in immigration in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.

If you would like to schedule a consultation for immigration issues, this information is in case you ever find yourself or a loved one needing to use it.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

February 1, 2023/by The Orlando Law Group

HOA and COA Powers, Responsibilities and Rights During an Emergency: Emergency Powers for HOAs and COAs

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Legal Commentary, Real Estate

Reserve funds are a key financial asset for your association, and provide a valuable source of funding for costly repairs, replacements and emergencies. Despite the importance of this resource, many Condominium Owners Associations are unsure as to what is needed to fund their reserve. Specifically, this blog will address two (2) concerns:

(1) What is required to fund the reserve account; and

(2) Requirements imposed by the newly passed Senate Bill 4D condominium inspection law as well as recent amendments to a significant portion of Florida Statutes Section 718, and how these will impact the operation of Condominium Owners Associations here in Florida.

What Is Reserve Funding? What Is Required to Fund the Reserve Account?

Reserve Funding is essentially a savings account for your association used to save money for costly repairs and replacements of community property. Think of it as the Association’s piggy bank or rainy-day jar. Reserve funds are typically spoken of as being held in one of two ways: pooled reserves and non-pooled reserves. Pooled reserves are funding for multiple assets (roofs, sidewalks, etc.) that are combined into one general account from which all expenses are paid. Non-pooled reserves are when each asset has its own account dedicated to its repairs and upkeep. Funds cannot be transferred under a non-pooled reserve method. Reserve accounts are often found to be underfunded significantly for the amount that could and should be done to keep the association’s community property in good working order.

As of December 31, 2024, for items required to be included in a Structural Integrity Reserve Study (more on this briefly), an Association may no longer use those itemized reserve funds (or any interest accruing thereon) for other purposes, and an Association may only use those itemized reserve funds for their designated purposes. Essentially, the use of pooled reserve funds has been eliminated by the amendment of Florida Statutes Section 718.

Recently, the Florida Senate rewrote and amended a significant portion of Florida Statutes Section 718, including the portion regarding reserve funding or a lack thereof. Florida Statutes Section 718.112(2)(f)(2a) reads:

“The members of a unit-owner-controlled association may determine, by a majority vote at a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection. Effective December 31, 2024, the members of a unit-owner-controlled association may not determine to provide no reserves or less reserves than required by this subsection for items listed in paragraph (g).”

Paragraph g of the Florida Statutes Section 718.112(2) as noted by the above section states: An association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that at a minimum, inspects the roofs, load-bearing walls or other primary structural members, floors, foundations, fireproofing and fire protection systems, plumbing, electrical systems, waterproofing and exterior painting, and windows.

So how may an Association Board go about changing their reserve funding? The board must present a proposed budget to the community assuming full reserve funding. For instance, let’s say an association seeks to reduce or waive their current reserve funding. The association cannot hold a vote to waive or reduce reserve funding until after a proposed budget with full reserve funding has been provided to the membership. If the board would like to put a vote on the table to reduce or waive reserves funding, then they should provide (along with the proposed budget which must be distributed 14 days prior to the budget meeting): (1) a second budget with waived or reduced reserves and (2) a limited proxy to be filled out by unit owners specifically requesting the membership to vote on the second budget. The proxy must include the following wording per Florida Statutes:

“WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.”

To successfully reduce or waive reserve funding, a majority of the membership (i.e., 51% of unit owners) must vote in favor of the reduction/ waiver. If by the time of the budget meeting arrives the association has received insufficient votes, the board may delay approving the budget to attempt to collect more votes. If a majority vote is not obtained, the board must approve the budget with full reserve funding. If a majority vote is obtained, the board must proceed with the waived or reduced reserve funding. It is important to note that any vote to waive or reduce reserves is only effective for one annual budget. Therefore, the vote must be obtained for every year the board would prefer not to fully fund reserves.

Senate Bill 4D

Senate Bill 4D was passed as a response to the tragedy in Surfside, Florida that occurred last year when a condominium building collapsed after a long history of maintenance problems and shoddy construction techniques. Senate Bill 4D was effective as of 05.26.2022 and entered fully into Chapter 2022-269 as of 06.29.2022, and the general bill reads as follows:

“Building Safety; Providing that the entire roofing system or roof section of certain existing buildings or structures does not have to be repaired, replaced, or recovered in accordance with the Florida Building Code under certain circumstances; requiring condominium associations and cooperative associations to have milestone inspections performed on certain buildings at specified times; authorizing local enforcement agencies to prescribe timelines and penalties relating to milestone inspections; revising the types of records that constitute the official records of a condominium association; prohibiting certain members and associations from waiving or reducing reserves for certain items after a specified date, etc.”

Specifically, a few sections should be noted to be of great importance with regard to the upkeep of the condominium buildings. Section 3 of Section 55.3899(2)(b) was added to define “substantial structural deterioration”. It defines substantial structural deterioration as distress that negatively affects a building’s general structural condition and integrity. But it does further note that the term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless a licensed engineer or architect performing inspection determines that such surface imperfections are a sign of substantial structural deterioration.

Further, concern has been expressed regarding the new “milestone inspection” requirement laid out by Senate Bill 4D. This Senate Bill does not require milestone inspections for condominium and cooperative buildings two stories or less. Per the latest revisions by the Florida Senate to Florida Statutes Section 718, condominium and cooperative buildings three stories and over must receive an inspection within a certain time frame that meets the new milestone inspection requirements for structural integrity. Those that are two or one story do not have to follow the set year inspection requirements, but one should be aware that lawmakers and legislators are looking closely at the condition of condominium buildings when it comes to resident safety.

However, as to balconies specifically, if the balcony is supported by items that hold general structural integrity, they are considered under the list to watch for substantial structural deterioration. If left unfixed and without inspection and a balcony structure fails or an individual is injured while the Board of Directions and Community Association Manager is aware of potential substantial structural deterioration regarding the balconies, then such a failure is a breach of an officers and directors’ fiduciary relationship to the unit owners under Florida Statutes Section. 718.111(1).

The attorneys at The Orlando Law Group represent condominium owners as well as COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

In Florida, it is common for homeowners or condominium owners to live in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively. Associations are commonly found in housing or property developments where people share a common area or amenities, such as:

  • Planned or private neighborhoods.
  • Subdivisions.
  • Gated communities.
  • Condominiums.
  • Townhome complexes.
  • Apartment buildings.

While the overall goal of most HOAs or COAs is to improve living standards within the community and maintain or increase property values, part of an HOA or COA’s responsibilities also include protecting the health, safety and welfare of the community which they serve. This mission is sometimes put to the test when an emergency situation arises within the community, such as during a natural disaster, during a health crisis such as a pandemic, or during a time of civil unrest. To include some more recent examples, many local HOAs and COAs faced challenges as to how to provide a proactive yet effective response during the COVID-19 pandemic and, more recently, during Hurricane Ian.

Certain emergency situations may call for a rapid response and thorough preparation from the HOA or COA in order to safeguard the wellbeing of the community. To this end, an Association’s ordinary powers can sometimes be expanded during times of emergency. These expanded powers are typically referred to as “emergency powers,” and can serve as a key source of guidance and leadership during crises.

The authority of HOAs and COAs to enforce their rules and regulations is rooted in statutory authority. Chapter 720 of the Florida Statutes empowers and controls the ability of HOAs to enforce their rules in Florida, whereas Chapter 718 of the Florida Statutes empowers and controls the ability of COAs to enforce their rules in Florida. In regard to the issue of emergency powers for HOAs and COAs, Florida Statute 720.316 provides guidance as to HOAs, while Florida Statute 718.1265 sheds light on powers for COAs.

As to emergency powers for HOAs, Florida Statute 720.316 states, in summary:

(1) To the extent allowed by law, unless specifically prohibited by the declaration or other recorded governing documents, and consistent with s. 617.0830, the board of directors, in response to damage or injury caused by or anticipated in connection with an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the association, may exercise the following powers:

(a) Conduct board meetings, committee meetings, elections, or membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication after notice of the meetings and board decisions is provided in as practicable a manner as possible.

(b) Cancel and reschedule an association meeting.

(c) Designate assistant officers who are not directors.

(d) Relocate the association’s principal office or designate an alternative principal office.

(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster or an emergency plan before, during, or following the event for which a state of emergency is declared, which may include, but is not limited to, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.

(g) Based upon the advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the common areas or facilities unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.

(h) Based upon the advice of emergency management officials or public health officials or upon the advice of licensed professionals retained by or otherwise available to the board, determine whether the common areas or facilities can be safely inhabited, accessed, or occupied.

(i) Mitigate further damage, injury, or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the common areas or facilities or sanitizing the common areas or facilities.

(j) Levy special assessments without a vote of the owners.

(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient.

As to emergency powers for COAs, Florida Statute 718.1265 states, in summary:

To the extent allowed by law, unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with s. 617.0830, the board of administration, in response to damage or injury caused by or anticipated in connection with an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may exercise the following powers:

(a) Conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication with notice given as is practicable.

(b) Cancel and reschedule any association meeting.

(c) Name as assistant officers persons who are not directors.

(d) Relocate the association’s principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster plan or an emergency plan before, during, or following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.

(g) Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the condominium property or association property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.

(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located.

(i) Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine whether the condominium property, association property, or any portion thereof can be safely inhabited, accessed, or occupied.

(j) Mitigate further damage, injury, or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus or contagion, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property.

(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further injury, contagion, or damage to the condominium property or association property.

(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient.

Taking a closer look at both of the above statutes, it can be seen that emergency powers may only be exercised to the extent allowed by state and federal law, unless specifically prohibited by the governing documents of the Association. Furthermore, the Board of an Association may only exercise the above emergency powers in response to or in anticipation of an emergency, as defined in s. 252.34(4), for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the Association is located. On the state level, a state of emergency may only be declared by executive order or proclamation of the Governor.

As such, it should be noted that the emergency powers an HOA or COA are limited, and the extent to which an HOA or COA can exercise these powers are always dependent on its governing documents, state law, and the nature of the emergency. Boards should also take into account that any emergency powers utilized by an HOA or COA Board must be exercised in a manner consistent with the board’s fiduciary duty to the community. An Association Board should be careful to balance its obligation to protect and look to the best interests of the community along with the limitations on its authority. A Board that over-extends its powers during an emergency may be viewed as domineering or even tyrannical, and is likely to lose the confidence and support of the community and its members.

However, the above language is not meant to scare Associations into never utilizing its emergency powers. After all, emergency powers were legally granted to HOAs and COAs for a reason – to protect the welfare of the community. HOAs and COAs should use their best discretion along with advice from expert legal counsel to determine what their emergency response should be. For instance, it may be wise for an Association to implement a disaster plan before, during or after an emergency, which could include turning off elevator or electrical systems at a designated time or organizing a volunteer team to help residents with reduced mobility to safely evacuate a disaster zone prior to an emergency. An Association could also conduct an emergency Board or member meeting to discuss a disaster response plan, for example.

In general, when preparing to respond to a disaster or emergency, advice and warnings issued by FEMA or other government agencies are a good place for an Association or Board to start.  For instance, if FEMA is advising residents to evacuate, a COA or HOA, although it may lack the power to order homeowners to leave their homes, could use its communication channels, such as their website or social media pages, to spread the word and ensure all members have notice of FEMA’s directives.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

November 26, 2022/by The Orlando Law Group

COA Reserve Funds – What You Need to Know About Association Reserves

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Legal Commentary, Real Estate

Reserve funds are a key financial asset for your association, and provide a valuable source of funding for costly repairs, replacements and emergencies. Despite the importance of this resource, many Condominium Owners Associations are unsure as to what is needed to fund their reserve. Specifically, this blog will address two (2) concerns:

(1) What is required to fund the reserve account; and

(2) Requirements imposed by the newly passed Senate Bill 4D condominium inspection law as well as recent amendments to a significant portion of Florida Statutes Section 718, and how these will impact the operation of Condominium Owners Associations here in Florida.

What Is Reserve Funding? What Is Required to Fund the Reserve Account?

Reserve Funding is essentially a savings account for your association used to save money for costly repairs and replacements of community property. Think of it as the Association’s piggy bank or rainy-day jar. Reserve funds are typically spoken of as being held in one of two ways: pooled reserves and non-pooled reserves. Pooled reserves are funding for multiple assets (roofs, sidewalks, etc.) that are combined into one general account from which all expenses are paid. Non-pooled reserves are when each asset has its own account dedicated to its repairs and upkeep. Funds cannot be transferred under a non-pooled reserve method. Reserve accounts are often found to be underfunded significantly for the amount that could and should be done to keep the association’s community property in good working order.

As of December 31, 2024, for items required to be included in a Structural Integrity Reserve Study (more on this briefly), an Association may no longer use those itemized reserve funds (or any interest accruing thereon) for other purposes, and an Association may only use those itemized reserve funds for their designated purposes. Essentially, the use of pooled reserve funds has been eliminated by the amendment of Florida Statutes Section 718.

Recently, the Florida Senate rewrote and amended a significant portion of Florida Statutes Section 718, including the portion regarding reserve funding or a lack thereof. Florida Statutes Section 718.112(2)(f)(2a) reads:

“The members of a unit-owner-controlled association may determine, by a majority vote at a duly called meeting of the association, to provide no reserves or less reserves than required by this subsection. Effective December 31, 2024, the members of a unit-owner-controlled association may not determine to provide no reserves or less reserves than required by this subsection for items listed in paragraph (g).”

Paragraph g of the Florida Statutes Section 718.112(2) as noted by the above section states: An association must have a structural integrity reserve study completed at least every 10 years after the condominium’s creation for each building on the condominium property that at a minimum, inspects the roofs, load-bearing walls or other primary structural members, floors, foundations, fireproofing and fire protection systems, plumbing, electrical systems, waterproofing and exterior painting, and windows.

So how may an Association Board go about changing their reserve funding? The board must present a proposed budget to the community assuming full reserve funding. For instance, let’s say an association seeks to reduce or waive their current reserve funding. The association cannot hold a vote to waive or reduce reserve funding until after a proposed budget with full reserve funding has been provided to the membership. If the board would like to put a vote on the table to reduce or waive reserves funding, then they should provide (along with the proposed budget which must be distributed 14 days prior to the budget meeting): (1) a second budget with waived or reduced reserves and (2) a limited proxy to be filled out by unit owners specifically requesting the membership to vote on the second budget. The proxy must include the following wording per Florida Statutes:

“WAIVING OF RESERVES, IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS.”

To successfully reduce or waive reserve funding, a majority of the membership (i.e., 51% of unit owners) must vote in favor of the reduction/ waiver. If by the time of the budget meeting arrives the association has received insufficient votes, the board may delay approving the budget to attempt to collect more votes. If a majority vote is not obtained, the board must approve the budget with full reserve funding. If a majority vote is obtained, the board must proceed with the waived or reduced reserve funding. It is important to note that any vote to waive or reduce reserves is only effective for one annual budget. Therefore, the vote must be obtained for every year the board would prefer not to fully fund reserves.

Senate Bill 4D

Senate Bill 4D was passed as a response to the tragedy in Surfside, Florida that occurred last year when a condominium building collapsed after a long history of maintenance problems and shoddy construction techniques. Senate Bill 4D was effective as of 05.26.2022 and entered fully into Chapter 2022-269 as of 06.29.2022, and the general bill reads as follows:

“Building Safety; Providing that the entire roofing system or roof section of certain existing buildings or structures does not have to be repaired, replaced, or recovered in accordance with the Florida Building Code under certain circumstances; requiring condominium associations and cooperative associations to have milestone inspections performed on certain buildings at specified times; authorizing local enforcement agencies to prescribe timelines and penalties relating to milestone inspections; revising the types of records that constitute the official records of a condominium association; prohibiting certain members and associations from waiving or reducing reserves for certain items after a specified date, etc.”

Specifically, a few sections should be noted to be of great importance with regard to the upkeep of the condominium buildings. Section 3 of Section 55.3899(2)(b) was added to define “substantial structural deterioration”. It defines substantial structural deterioration as distress that negatively affects a building’s general structural condition and integrity. But it does further note that the term does not include surface imperfections such as cracks, distortion, sagging, deflections, misalignment, signs of leakage, or peeling of finishes unless a licensed engineer or architect performing inspection determines that such surface imperfections are a sign of substantial structural deterioration.

Further, concern has been expressed regarding the new “milestone inspection” requirement laid out by Senate Bill 4D. This Senate Bill does not require milestone inspections for condominium and cooperative buildings two stories or less. Per the latest revisions by the Florida Senate to Florida Statutes Section 718, condominium and cooperative buildings three stories and over must receive an inspection within a certain time frame that meets the new milestone inspection requirements for structural integrity. Those that are two or one story do not have to follow the set year inspection requirements, but one should be aware that lawmakers and legislators are looking closely at the condition of condominium buildings when it comes to resident safety.

However, as to balconies specifically, if the balcony is supported by items that hold general structural integrity, they are considered under the list to watch for substantial structural deterioration. If left unfixed and without inspection and a balcony structure fails or an individual is injured while the Board of Directions and Community Association Manager is aware of potential substantial structural deterioration regarding the balconies, then such a failure is a breach of an officers and directors’ fiduciary relationship to the unit owners under Florida Statutes Section. 718.111(1).

The attorneys at The Orlando Law Group represent condominium owners as well as COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

November 30, 2022/by The Orlando Law Group

A Guide to Community Association Records Requests for HOAs and COAs: What Can and Can’t an Owner Request?

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Legal Commentary, Real Estate

Homeowners or condominium owners, as members of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS.—The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.—

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p).

However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records.

What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorney’s fees from the Association or person in control of the records.

If you are a board member who is unsure as to what records you need to provide and what records you cannot provide to a unit owner, it may be helpful for you to seek the help of an Association law attorney as well. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

As a homeowner or condominium owner and as a member of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; you do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS. The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p). However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records. What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorneys fees from the Association or person in control of the records.

If you, as a member of an HOA or COA, have submitted a records request to your Association, who has failed to comply with that records request, it may be helpful for you to seek the help of an Association law attorney. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

November 20, 2022/by The Orlando Law Group

Requesting Records from your Condominium Association or Homeowners Association: What Can and Can’t You Request?

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Legal Commentary, Real Estate

As a homeowner or condominium owner and as a member of a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA; you do have the right to request and review the “official records” of the Association. But what can and can’t owners request? What are the “official records of the Association?”

First, let’s look at what “official records” means. Pursuant to Florida Statute 720.303(4), (the statute governing HOAs):

“OFFICIAL RECORDS. The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(a) Copies of any plans, specifications, permits, and warranties related to improvements constructed on the common areas or other property that the association is obligated to maintain, repair, or replace.

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years.

(g) A current roster of all members and their mailing addresses and parcel identifications. The association shall also maintain the electronic mailing addresses and the numbers designated by members for receiving notice sent by electronic transmission of those members consenting to receive notice by electronic transmission. The electronic mailing addresses and numbers provided by unit owners to receive notice by electronic transmission shall be removed from association records when consent to receive notice by electronic transmission is revoked. However, the association is not liable for an erroneous disclosure of the electronic mail address or the number for receiving electronic transmission of notices.

(h) All of the association’s insurance policies or a copy thereof, which policies must be retained for at least 7 years.

(i) A current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility. Bids received by the association for work to be performed must also be considered official records and must be kept for a period of 1 year.

(j) The financial and accounting records of the association, kept according to good accounting practices. All financial and accounting records must be maintained for a period of at least 7 years. The financial and accounting records must include:

1. Accurate, itemized, and detailed records of all receipts and expenditures.

2. A current account and a periodic statement of the account for each member, designating the name and current address of each member who is obligated to pay assessments, the due date and amount of each assessment or other charge against the member, the date and amount of each payment on the account, and the balance due.

3. All tax returns, financial statements, and financial reports of the association.

4. Any other records that identify, measure, record, or communicate financial information.

(k) A copy of the disclosure summary described in s. 720.401(1).

(l) Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by parcel owners, which must be maintained for at least 1 year after the date of the election, vote, or meeting.

(m) All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.

(n) All other written records of the association not specifically included in this subsection which are related to the operation of the association.”

The above would constitute all of the “official records” of an HOA. Regarding the “official records” of a COA, pursuant to Florida Statute 718.111(12):

“OFFICIAL RECORDS.

(a) From the inception of the association, the association shall maintain each of the following items, if applicable, which constitutes the official records of the association:

1. A copy of the plans, permits, warranties, and other items provided by the developer under s. 718.301(4).

2. A photocopy of the recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

3. A photocopy of the recorded bylaws of the association and each amendment to the bylaws.

4. A certified copy of the articles of incorporation of the association, or other documents creating the association, and each amendment thereto.

5. A copy of the current rules of the association.

6. A book or books that contain the minutes of all meetings of the association, the board of administration, and the unit owners.

7. A current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers. The association shall also maintain the e-mail addresses and facsimile numbers of unit owners consenting to receive notice by electronic transmission. The e-mail addresses and facsimile numbers are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with sub-subparagraph (c)3.e. However, the association is not liable for an inadvertent disclosure of the e-mail address or facsimile number for receiving electronic transmission of notices.

8. All current insurance policies of the association and condominiums operated by the association.

9. A current copy of any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility.

10. Bills of sale or transfer for all property owned by the association.

11. Accounting records for the association and separate accounting records for each condominium that the association operates. Any person who knowingly or intentionally defaces or destroys such records, or who knowingly or intentionally fails to create or maintain such records, with the intent of causing harm to the association or one or more of its members, is personally subject to a civil penalty pursuant to s. 718.501(1)(d). The accounting records must include, but are not limited to:

a. Accurate, itemized, and detailed records of all receipts and expenditures.

b. A current account and a monthly, bimonthly, or quarterly statement of the account for each unit designating the name of the unit owner, the due date and amount of each assessment, the amount paid on the account, and the balance due.

c. All audits, reviews, accounting statements, structural integrity reserve studies, and financial reports of the association or condominium. Structural integrity reserve studies must be maintained for at least 15 years after the study is completed.

d. All contracts for work to be performed. Bids for work to be performed are also considered official records and must be maintained by the association for at least 1 year after receipt of the bid.

12. Ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to voting by unit owners, which must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates, notwithstanding paragraph (b).

13. All rental records if the association is acting as agent for the rental of condominium units.

14. A copy of the current question and answer sheet as described in s. 718.504.

15. A copy of the inspection reports described in ss. 553.899 and 718.301(4)(p) and any other inspection report relating to a structural or life safety inspection of condominium property. Such record must be maintained by the association for 15 years after receipt of the report.

16. Bids for materials, equipment, or services.

17. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).

18. All other written records of the association not specifically included in the foregoing which are related to the operation of the association.

The above would thus all constitute the “official records” of a COA. Both statutes require that the Association, whether an HOA or a COA, maintains the official records of the Association from the Association’s inception. Certain records may only be required to be maintained for a certain period of time-for example, while most official records must be maintained for at least 7 years, Chapter 718 (COA Statute) requires that bids for work to be performed or for materials, equipment, or services must be maintained for at least 1 year after receipt of the bid.

The official records of the Association may, based on Florida statute, be requested by a parcel owner for inspection or photocopying. Requests for records must be sent in written form by certified mail, return receipt requested. This request must be fulfilled within 10 business days after receipt by the Board or its designee of a written request. Associations can also comply with this requirement by having a copy of the official records of the association available for inspection or copying on the condominium property or association property, such as at the community clubhouse, or the association may offer the option of making the records available to a unit owner electronically via the Internet or by allowing the records to be viewed in electronic format on a computer screen and printed upon request.

The official records of the Association may be requested and inspected any association member or the authorized representative of such member at all reasonable times. This right includes the right to make or obtain copies, at the reasonable expense, if any, of the member. For COAs, a renter or tenant of a unit has the right to inspect and copy only the declaration of condominium, the association’s bylaws and rules, and the inspection reports described in ss. 553.899 and 718.301(4)(p). However, while unit owners do have this right; this does not mean that the Association cannot set reasonable rules governing the inspection of Association records. Pursuant to Florida Statutes Chapters 718 and 720, an Association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but cannot require a unit owner to state a reason for the inspection. For example, an Association could limit unit owners to only making one records request per month.

Note that ONLY the official records of the Association can be requested and inspected by a unit owner. If a unit owner’s request falls outside the bounds of an official record, or if the unit owner’s request is too vague or unreasonable, the Association is not required to provide those records. As such, while owners do have a right to request official records; the Association is not required to provide unofficial records. What else cannot be requested and inspected? Florida Statute 718.111(12)(c)(3) provides us with an answer for COAs:

“The following records are not accessible to unit owners:

a. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

b. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.

c. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

d. Medical records of unit owners.

e. Social security numbers, driver license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements, and other personal identifying information of any person, excluding the person’s name, unit designation, mailing address, property address, and any address, e-mail address, or facsimile number provided to the association to fulfill the association’s notice requirements.

f. Electronic security measures that are used by the association to safeguard data, including passwords.

g. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

h. All affirmative acknowledgments made pursuant to s. 718.121(4)(c).”

For HOAs, similar restrictions are applicable pursuant to Florida Statute 720.303(5)(c):

“The following records are not accessible to members or parcel owners:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege.

2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a parcel.

3. Information an association obtains in a gated community in connection with guests’ visits to parcel owners or community residents.

4. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.

5. Medical records of parcel owners or community residents.

6. Social security numbers, driver license numbers, credit card numbers, electronic mailing addresses, telephone numbers, facsimile numbers, emergency contact information, any addresses for a parcel owner other than as provided for association notice requirements, and other personal identifying information of any person, excluding the person’s name, parcel designation, mailing address, and property address.

7. Any electronic security measure that is used by the association to safeguard data, including passwords.

8. The software and operating system used by the association which allows the manipulation of data, even if the owner owns a copy of the same software used by the association. The data is part of the official records of the association.

9. All affirmative acknowledgments made pursuant to s. 720.3085(3)(c)3.”

All of the above is not considered as part of the official records of the Association and thus cannot be requested. An Association is not required to provide any of the above information to owners.

What happens if the Association fails to comply with a records request? It depends. In the case of an HOA, a member who is denied access to official records is entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 720.303. The minimum damages are $50 per calendar day up to 10 days, with the calculation beginning on the 11th business day after receipt of the written request. In the case of a COA, a unit owner who is denied access to official records is also entitled to damages or minimum damages for the association’s willful failure to comply with Florida Statutes 718.111. Minimum damages are $50 per calendar day for up to 10 days, with the calculation beginning on the 11th working day after receipt of the written request. A unit owner who prevails in an enforcement action may also be entitled to reasonable attorneys fees from the Association or person in control of the records.

If you, as a member of an HOA or COA, have submitted a records request to your Association, who has failed to comply with that records request, it may be helpful for you to seek the help of an Association law attorney. An experienced Association law attorney can be of great assistance to both homeowners or condominium owners and Association or board members alike.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

November 20, 2022/by The Orlando Law Group

Common Misconceptions about Homeowners/Condominium Owners Associations

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Legal Commentary, Real Estate

Living in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively, has its benefits as well as its drawbacks. No matter where you are from, we’re sure you’ve heard of some HOA or COA horror stories from a friend or family member. Although these stories can be intimidating for those looking to purchase property within an HOA or COA, oftentimes, these stories are not necessarily the norm for all Associations. In fact, while the vast majority of people living in a community Association are satisfied with their Association, according to a 2022 study by the Foundation for Community Association Research, there are many misconceptions about Associations perpetuated not only by homeowners or condominium owners, but even by Association board members themselves. In this article, we hope to dispel some of the many misconceptions surrounding Associations, and provide some clarity as to what an HOA or COA actually does and how they operate.

Misconception #1: An Association exists to control its residents and enforce unnecessary rules and regulations-even at the expense of the community and its residents.

First, let’s look at the ultimate purpose of an HOA or COA. An HOA or COA develops and enforces regulations and guidelines for its members, with the ultimate goal and purpose of providing structure to the community, preserve and enhance the community’s property values, and make sure the community is a pleasant and well-maintained place for its residents to live. Simply put, an Association exists for its members and for the community they inhabit. A good Association, run by a responsible and reasonable Board, is an incredible asset for their community and its residents, and can accomplish great things, making the community an overall better place to live.

Now, this is not to say that all Associations are “good” Associations. Some Associations fail to comply with statutory requirements, or do not take into account the opinions of the members. The good news is; there are countless protections and rights provided to homeowners and condominium owners while allow owners to hold their Association accountable for possible misdeeds. For example, under Florida Statute 720.303 for HOAs, and under Florida Statute 718.111 for COAs, unit owners have the right to request and inspect the official records of the Association. You can learn more about this right in our blog regarding HOA and COA records requests linked here. As another example, under the Fair Housing Act, it is illegal to prohibit individuals from moving into or renting in a neighborhood on the basis of sex, religion, disability, race, nationality, or familial status. If an HOA or COA violates this act, the Association may have severe charges pressed against it.

Furthermore, if you as an owner find yourself in dispute with your HOA or COA, you can hire an experienced Association law attorney review your situation and develop a strategy to assist you in resolving the dispute. The attorneys at The Orlando Law Group represent homeowners and condominium owners in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

Misconception #2: Associations exist only to make money and to levy high assessment fees against its members.

Many homeowners ask, why do I have to pay HOA or COA fees? And, where is that money going towards? When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, responsible for paying community expenses called Assessments or, more commonly, referred to as HOA dues or fees. These contributions are collected on a fixed time schedule (such as on a monthly, quarterly, or annual basis) to pay for standard maintenance and upkeep of the community’s facilities and common areas, as well as to improve the community by implementing new facilities and features. Simply put, HOA fees or dues provide the funding which allows the HOA or COA to enforce its rules and regulations as well as carry out its obligations, with the ultimate goal of making the community a more enjoyable place to live. Further, note that Association board members are not paid for serving as board members – serving on the board is a fully voluntary position for most Associations.

As such, HOA or COA funds have a clear purpose for being collected – they are instrumental for allowing Associations to run smoothly and efficiently, and to fulfill their responsibilities under the HOA’s governing documents. As a homeowner, you have a right to request and inspect your Association’s financial records to find out exactly where your assessment dues are going. HOAs and COAs alike are required to keep and maintain their financial records and to foster transparency within their community. If you are concerned or simply want to know what your money is being used for, you can submit a records request to your HOA or COA. You can learn more about this right in our blog regarding HOA and COA records requests linked here. To learn more about why your HOA and COA fees are being directed in certain ways, check out our blog “All About Homeowners and Condominium Owners Associations.”

Misconception #3: HOA or COA rules and regulations cannot be changed or amended.

HOA and COA rules and regulations as well as the governing documents of an Association are not set in stone, and can absolutely be amended or changed. As with many things, with time, certain rules or restrictions become outdated or no longer make sense. An Association and its members may seek to change these rules by amending them.

Each governing document is subject to their own amendatory procedure. Typically, amending the declaration or bylaws requires some form of an owner vote, whereas rules or regulations can be most often amended by the Board without an owner or member vote being necessary or required. Neither Chapter 718 or Chapter 720 of the Florida Statutes contains any requirement for owners to approve or vote on rules and regulations, assuming rulemaking authority has already been granted to the board.

However, this does not mean that owners have no say in the rules and regulations their Board chooses to implement. Association members have the ability to attend board meetings where they can share their opinions and raise any concerns regarding any agenda items the board plans to vote on, including rules and regulations. During a board meeting, property owners can submit a written request to amend or remove certain rules. The board will then review the request independently and come to a conclusion. The best board members will take the time to periodically review their governing documents to ensure everything is satisfactory and current. To learn more about amending HOA/COA documents, check out our blog on Amending HOA Documents and the Unlicensed Practice of Law here.

Misconception #4: Having a management company essentially replaces Association Board Members.

Many Associations, especially larger Associations, hire a management company to assist in the daily operations of the Association. As we previously noted, board members are not paid to serve on the Board, and the position is voluntary. Board members may have their own careers to attend to, and it may be impossible for board members to dedicate 100% of their time to the Association. This is where a management company may step in and take on some of the day-to-day operations of the Association, such as with accounting, property management, dealing with violations, and corresponding with unit owners. For example, perhaps an Association hopes to make the accounting and collections process more efficient and chooses to hire a management company to assist them.

Management companies can be wonderful tools for Associations to utilize in ensuring their daily operations run smoothly and efficiently; but they do not take the place of board members. Management companies cannot make decisions on behalf of the board; cannot amend HOA or COA documents, and cannot pursue legal action on behalf of the Association. The Association’s board members work in conjunction with the management company to improve the operations of the Association and better the community. As such, management companies serve not to replace board members, but instead to assist them in fulfilling the responsibilities of the Association and in serving their residents.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

November 20, 2022/by The Orlando Law Group

The Governing Documents of an HOA or COA – What do they mean?

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Legal Commentary, Real Estate

In Florida, it is common for homeowners or condominium owners to live in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively. Associations are commonly found in housing or property developments where people share a common area or amenities, such as:

  • Planned or private neighborhoods.
  • Subdivisions.
  • Gated communities.
  • Condominiums.
  • Townhome complexes.
  • Apartment buildings.

As a homeowner or condominium owner living in an Association or as an Association board member (or, someone interested in one day becoming a board member), it’s important to have a general understanding of what an HOA or COA does, what an HOA or COA is responsible for, and how an HOA or COA operates. A key aspect of the operation of any HOA or COA is its governing documents, or the documents which control the administration and daily activities of an Association.

As a member of an Association, it’s very important for you to have reviewed and understood the governing documents of your Association and what rules those documents obligate you to follow. Typically, the “governing documents” of the community include the declaration of covenants, the articles of incorporation, the bylaws, and the rules and regulations. Some Associations may have more documents or policies, such as a landscaping policy or an Architectural Review Committee or Board policy.

The declaration is much like your Association’s “constitution” and sets forth the basic covenants and restrictions for the community. If you are looking at investing or renovating the home, make sure to review this document. For example, covenants include the obligation to pay assessments on time and be a member of the association. The requirement that your lot can only be used as a single family home, or can only be rented for certain minimum periods are examples of restrictions which may be found in your Declaration. These are just a couple of examples of restrictions which may be found in your declaration and affect you.

The articles of incorporation establish the Association’s existence, basic structure, and governance.

The bylaws govern the overall operation of the Association. Bylaws will typically address the composition of the Board, how meetings are called, how voting procedures work, and numerous other corporate procedures.

The rules and regulations usually act as a supplement to the covenants contained in the declaration, and typically address everyday matters, such as parking or use of the community’s recreational facilities.

Each governing document is subject to their own amendatory procedure. Typically, amending the declaration or bylaws requires some form of an owner vote, whereas rules or regulations can be most often amended by the Board without an owner or member vote being necessary or required. Neither Chapter 718 or 720 of the Florida Statutes contains any requirement for owners to approve or vote on rules and regulations, assuming rulemaking authority has already been granted to the board.

However, this does not mean that owners have no say in the rules and regulations their Board chooses to implement. Association members have the ability to attend board meetings where they can share their opinions and raise any concerns regarding any agenda items the board plans to vote on, including rules and regulations. To learn more about amending HOA/COA documents, check out our blog on Amending HOA Documents and the Unlicensed Practice of Law here.

A good example of this is having a few backyard chickens. As this practice has risen in popularity, Associations are working through the complexities of having a small chicken coop on their property. When your city or county approves backyard chicken coops, your Association may not allow it.

As we previously stated, it’s very important for you to have reviewed and understood the governing documents of your Association and what rules those documents obligate you to follow. When you purchase property located within the jurisdiction of an Association, you become a member of that Association and are thus required to follow the Association’s rules and restrictions set out in the Association’s governing documents.

If you were starting a new job, you would want to become familiar with your new job’s standard operating procedures or general rules for doing the job to ensure that you know what guidelines you need to follow in order to be successful. The same logic can be applied to your HOA or COA-you want to be familiar with the rules to ensure that you and your home are in compliance with the Association’s governing documents. Otherwise, if your home falls outside of compliance, and you do not correct the violation in a timely manner, you could be subject to fines and other penalties, which the Association would likely be within their legal right to enforce as laid out in their governing documents and Florida Statutes Chapter 718/720.

Nowadays, many HOAs or COAs have their own website which contains their governing documents for their residents to easily download and review. Or, you can request a copy of the Association’s official records by making a records request, which we will discuss in greater detail in our next blog.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

November 20, 2022/by The Orlando Law Group

HOA/COA Fees – Why Do I Have To Pay For Them, and Where Is That Money Going?

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Legal Commentary, Real Estate

Many homeowners ask, why do I have to pay HOA or COA fees? And, where is that money going towards? When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, responsible for paying community expenses called Assessments or, more commonly, referred to as HOA dues or fees. These contributions are collected on a fixed time schedule (such as on a monthly, quarterly, or annual basis) to pay for standard maintenance and upkeep of the community’s facilities and common areas, as well as to improve the community by implementing new facilities and features. Simply put, HOA fees or dues provide the funding which allows the HOA or COA to enforce its rules and regulations as well as carry out its obligations. Each Association and its Board determines how much residents have to pay each month, quarter or year by preparing a budget.

What do HOA fees cover?

Generally, HOA fees pay for the upkeep of common areas and facilities, including:

  • Sidewalks/walkways.
  • Parks.
  • Lighting.
  • Elevators.
  • Pools.
  • Clubhouses.
  • Gyms or fitness centers.

HOA fees can also cover services for the community, such as:

  • Lawn care and landscaping.
  • Maintenance and repairs.
  • Snow removal.
  • Trash pickup.
  • Security.
  • Pest control.
  • Insurance for common areas.
  • Social events, such as block parties or holiday parties.

Often, part of your HOA or COA dues goes towards the Association’s reserve fund, which pays for upcoming maintenance or large-scale projects (such as building a new park), as well as provides funds for possible emergency repairs. Think of it as the Association’s piggy bank or rainy day jar. If your HOA or COA does not have enough money in its reserves and needs to pay for a repair or project, they can issue what is referred to as “special assessments.” Associations can also raise or lower Association fees at any time, if the Board approves. For example, many Associations needed to dip into those funds after the recent hurricanes to fix a brick wall or to remove a tree from the common area. These funds can also be used for special large-scale projects, such as building a new park or clubhouse for the community to enjoy.

All fees and special assessments are set by the board of directors based on the budget they want to spend. A multitude of decisions go into the annual budget, including increases in maintenance costs or long-term goals of new or renovated amenities. Of course, you have a voice in this. A proposed budget should be available to all members. You can go to your Association meetings and state your case for a different fee or budget. While this mostly happens once a year, Associations can also raise or lower association fees at any time, if the board approves.

As a member of the Association, you are required to pay HOA/COA fees or assessments, just like any other bill. If you forget a payment or fall on hard times, there may be a grace period; but this depends on the Association. After that grace period, expect to get a friendly collection letter, late fees, and possible interest applied to your account.

What happens if you don’t pay your HOA/COA fees? If you receive collections letters and warnings and still don’t pay your HOA/COA dues, the Board may choose to take further legal action. This can include:

  • Collections: If your HOA/COA sends your past-due account to a collections agency or some other mechanism to collect the overdue funds, it can damage your credit score.
  • Liens: If your HOA/COA puts a lien on your property, that can come up in a title search and make it difficult to sell your house if you hope to move. Most Associations have the legal right to place a lien on a home or unit to secure the payment of past due assessments. To learn more about the Association collections process, read our blog “The Ins and Outs of the Association Collections Process.”
  • Lawsuits: The HOA can sue you for unpaid dues in some states, including in Florida. This could end in wage garnishment or a levy against your bank account.
  • Foreclosure:  In some cases, your HOA may be able to foreclose on your property based on its covenants and state law. Remember, in a foreclosure action, the primary goal of the Association is not to take title to a property but to force a sale on that property so that the Association can retrieve the money owed to the Association.

If you come up tough times financially and have trouble paying your fees, contact your HOA or COA board to schedule a meeting. You may be able to work out a payment plan to see you through tough times. It’s always preferable to work out a payment plan rather than to continue not paying and allow late fees and interest to rack up on your account. In some cases, these late fees and interest can one day amount to even more than the actual assessment amounts which are past due.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

November 20, 2022/by The Orlando Law Group

All About Homeowners and Condominium Owners Association

All posts, Blog, Condominium Owners Association (COA), Home Owners Associations (HOA), Legal Commentary, Real Estate

In Florida, it is common for homeowners or condominium owners to live in a community with a Homeowners Association or a Condominium Owners Association, generally referred to as an HOA or a COA, respectively. Associations are commonly found in housing or property developments where people share a common area or amenities, such as:

  • Planned or private neighborhoods.
  • Subdivisions.
  • Gated communities.
  • Condominiums.
  • Townhome complexes.
  • Apartment buildings.

As a homeowner or condominium owner living in an Association or as an Association board member (or, someone interested in one day becoming a board member), it’s important to have a general understanding of what an HOA or COA does, what an HOA or COA is responsible for, and how an HOA or COA operates.

First, what does an HOA or COA do, and what is the general purpose of an HOA or COA? While each and every HOA or COA is slightly different and may operate in slightly different ways, the overall purpose of any HOA or COA is the same. An HOA or COA is an organization that develops and enforces rules and guidelines for properties and residents living within a subdivision, planned community, or condominium. Generally, an Association is made up of and operated by residents of the community, who are elected by fellow members of the Association. Those who are elected to run an HOA or COA are usually referred to as the HOA or COA’s Board, or “Board of Directors.” When you purchase property located within the jurisdiction of an HOA or COA, you become a member of that Association, and are required to follow the rules and regulations associated with that Association.

An HOA or COA develops and enforces regulations and guidelines for its members, with the ultimate goal and purpose of providing structure to the community, preserve and enhance the community’s property values, and make sure the community is a pleasant and well-maintained place for its residents to live. An HOA or COA may, and commonly does, hire a property manager or property management company to assist in carrying out the everyday operations of the Association. This property manager is typically known as a Community Association Manager, or CAM.

The responsibilities of an HOA or COA may include (but are not limited to) any of the following:

Develop and Enforce Rules and Regulations

  • Develop and approve covenants, conditions, rules, and bylaws, as well as amend old rules and regulations when necessary
  • Hear complaints from residents and make decisions as to how to handle disputes within the community
  • Enforce penalties against residents if they do not comply with the Association’s rules and regulations in the form of fines or legal action

Hold Meetings and Communicate with Members

  • Hold meetings for members, hear out concerns of the members, determine voting matters, vote on issues, elect a new Board, etc.
  • Hold meetings for the Board of Directors
  • Communicate with homeowners, property managers, attorneys, and other personnel
  • Planning events or social activities.

Oversee the Finances of the Community

  • Set annual and/or monthly budget with input from owners
  • Keep and maintain financial records
  • Set and collect assessment fees
  • Pursue collections against homeowners who do not pay their assessments on time
  • Maintain a reserve of funds
  • Allocate spending for insurance coverage

Maintain the Neighborhood

  • Budget for upkeep and maintenance
  • Collect bids from contractors for maintenance
  • Schedule and arrange inspections
  • Respond to emergencies

Some HOAs or COAs are voluntary, while others are mandatory. Voluntary HOAs/COAs are optional to join, but members can access shared amenities, like a clubhouse, gym, or pool. In most cases, if you don’t join the Association, you don’t get the perks. Mandatory HOAs/COAs are exactly as they sound-mandatory. If you purchase property in a mandatory HOA or COA, you must pay HOA/COA fees and follow the rules and regulations of that Association. When buying new property, you will want to know whether there is an Association, and whether that Association is mandatory or voluntary. Please note that throughout the rest of this blog, we will mainly be referring to mandatory Associations.

The authority of HOAs and COAs to enforce their rules and regulations is rooted in statutory authority by the state of Florida. Chapter 720 of the Florida Statutes empowers and controls the ability of HOAs to enforce their rules, whereas Chapter 718 of the Florida Statutes empowers and controls the ability of COAs to enforce their rules. While Chapters 718 and 720 are similar in many ways, there are some key differences; so if you are looking to learn more about the legal authority that grounds your HOA or COA, make sure that you are looking at the right chapter! While the Florida Statutes empower HOAs and COAs to enforce their rules, the Statutes also restrict HOAs and COAs in several key ways and provide rights to homeowners and condominium owners, such as the right to peacefully assemble, display the U.S. flag, request official Association records, and, in serious cases, the right to recall the Board.

While statutes set the framework for HOAs and COAs, every Association is different. After all, the rules of any community should be set by the community itself, not by politicians in Tallahassee. However, Associations must always adhere to the statutes which govern them.

The attorneys at The Orlando Law Group represent homeowners and condominium owners as well as HOAs and COAs in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you are a homeowner, condominium owner, or an Association board member, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

November 20, 2022/by The Orlando Law Group

Do I really need an Immigration Attorney?

All posts, Blog, Community, Immigration, Legal Commentary

The short answer to that question is absolutely. The Immigration process can be very tricky for those who are not familiar with the process. There are many different government agencies involved (USCIS, EOIR, ICE, NVC, DOS, CBP, etc.) and the forms can be super confusing. Some forms have instructions that are over 40 pages long and trying to get information from the government agencies by calling to ask a question is as futile as talking to a wall. To top it off, there are a lot of people out there that are looking to make a quick buck at the expense of your future.

In many countries, the use of a notary public or notario publico is almost the same as using a lawyer. That is not the case in the United States. The process for becoming a notary in the U.S. is no where near what a notary has to go through in other parts of the world. Additionally, a notario is NOT an attorney. There are many people out there that will promise you that they will get you a work authorization or green card when there is no legal basis for the application. These individuals will charge excessive fees and could even subject you to removal from the United States. I have personally seen many people who have been harmed by the use of notaries. I have had many clients who thought they were doing the right thing, because it was a person they thought they trusted or their brother’s best friend’s Aunt used this person and they were able to get a work permit. They did not get a work permit and ended up in removal proceedings because an asylum application was filed or other type of application that the person did not qualify for.

Many people do not realize how bad the situation is until they receive that notice to appear for removal proceedings before an Immigration Judge. And once an application is made, even if you have no idea what you signed, the Government will take the position that you did because you signed the form. Lying or providing false information to a government official could be considered a misrepresentation which could make you inadmissible and/or removable. This means that you may not be able to seek certain immigration benefits even if you end up qualifying for a certain type of relief at a later date. The law is always changing. You may not qualify today for a green card or work authorization, but that could very well change.

The moral of the story is, make sure that you are using a knowledgeable attorney who has experience, and it is someone that you can trust. The Immigration process is complex and can be scary. Below are a few things to look out for when seeking professional assistance with your Immigration matter:

  1. Make sure that the person you are meeting with is a licensed attorney not subject to any disciplinary proceedings. In order to practice Immigration law, the attorney only needs to be admitted to practice law in a state or territory of the U.S. Ask for the attorney’s bar number and state/territory they are licensed in so you can look them up to make sure they are actually licensed and not subject to any disciplinary proceedings. There are also BIA Accredited Representatives, who are non-lawyers working at non-profit organizations that have been granted permission to provide Immigration help by the U.S. Department of Justice. If they are not a licensed attorney in good standing with their state bar or an accredited representative, they are not authorized to assist you with your Immigration case. You can also check the Executive Office for Immigration Review (EOIR) list for all disciplined practitioners.
  2. Review the forms before signing and never sign a blank form. Make sure that you see the Forms being submitted on your behalf before it is submitted. If you have any questions, go over them with the attorney. If you need a translator, ask for one or bring your own. Never sign a blank form or a blank piece of paper. This is one way to get yourself in trouble as you may not know what is submitted on your behalf and it could negatively impact your case. Always ask for a copy of what is submitted on your behalf.
  3. You should never be charged for the Form itself. Most forms have filing fees and most attorneys will charge a fee for their services to prepare the forms and the accompanying evidence. However, you should never be charged for the actual form itself. This is a sign you are dealing with someone who is looking to take advantage of you. All forms are available online for free.
  4. Get a receipt for any payment made.
  5. Do not let your attorney keep your original documents. The attorney should always make copies of your personal documents, while you keep the original documents. If an original is needed, the Immigration official will ask to see it at an interview or hearing. Do not submit originals.
  6. Do not trust anyone who claims to know about secret laws. Any new laws or regulations are made public. Beware of people who ask you to pay to be put on a waiting list. This is not a thing.
  7. Track your case. In almost every scenario where you are seeking an Immigration benefit, you can track the status of your case. Many of these cases take time. They can take a very long time. This is due to the very very long back log of cases. If you used an attorney, you should be provided with a receipt notice once your application was submitted and received by USCIS. This can take a couple of weeks. That receipt notice will have a receipt number that can be used to track your case status online as uscis.gov. If you are in removal proceedings, there is a hotline that can be used to track the status of your case and to see when you have your next hearing date. If you try to use these and nothing comes up and the person you used to assist with your application or who says they are representing you in Court does not answer your calls within a reasonable amount of time (at least a week), you may need to get a second opinion.

The last point I want to make, and one of the main reasons people choose non-lawyers to assist them, is the cost. Inflation is high and the cost of everything is being felt by everyone. Many people are looking to save money where they can, and this can make people weary of using an attorney because attorneys can cost more than using a notario. However, in the long run, getting a competent Immigration attorney to assist you will save you money. The notario will likely mess up your case and you will end up having to pay for an attorney to fix the mess that is made, if it is fixable. Remember, you do get what you pay for. Don’t become a cautionary tale. Many law firms will provide payment plans to assist those on a budget. Don’t let the cost of representation push you into making a decision that could negatively impact the rest of your life.

The attorneys at The Orlando Law Group represent immigration clients in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Sanford, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you have a question about your Immigration case or whether you may have any immigration benefits available to you, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it. We provide representation and legal services for both homeowners and Associations alike.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

February 17, 2023/by The Orlando Law Group

Student Loan Forgiveness

All posts, Bankruptcy, Blog, Community, Legal Commentary, Miscellaneous, News, Personal

One of the biggest obstacles to getting back on your feet financially are student loans. They usually have a very high interest rate and are very difficult to find relief through traditional methods, like bankruptcy.

Thankfully, there is relief on the way from the federal government. And, the attorneys from The Orlando Law Group are here to help you navigate.

First and foremost, do not fall for any scams or people calling asking for your forgiveness applications or from people and organizations that sound too good to be true. Just like so many other things, if it’s too good to be true, it probably is. If you have any questions about your student loans or people who approach you, please feel free to call.

While there are people trying to take advantage of you, student loan relief is absolutely real and you are probably eligible for some relief.

FIND OUT ABOUT YOUR STUDENT LOANS

The first thing you must do is find out what type of student loans you have. Not all student loans are the same and not all loans are eligible for relief.

To find out what type of loans you have, visit StudentAid.gov and update your information. You want to make sure you have a loan that is serviced by the United States Department of Education. Only those loans are eligible for relief currently.

Unfortunately, if you have a loan through the Federal Family Education Loan Program, you will not be eligible for the 10k or 20k relief, per a recent news release.  These were loans taken out before 2010. These loans were made to students by nonprofits, banks, and other private lenders and guaranteed by the federal government. Some of the FFELP loans were converted to direct loans during the Great Recession, but not all of them. In fact, more than 11 million loans are the FFELP loans.

By submitting your information on the StudentAid.gov site, you will quickly know how you should proceed.

ACT QUICKLY FOR THE PSLF PROGRAM

If you are employed by a government or not-for-profit organization, you could possibly be eligible for the Public Service Loan Forgiveness program that can truly help your situation.

According to StudentAid.gov, you are eligible for relief under this act if:

  • work full-time for that agency or organization.
  • have Direct Loans (or consolidate other federal student loans into a Direct Loan).
  • repay your loans under an income-driven repayment plan*; and
  • make 120 qualifying payments.

If you think you qualify, sign up soon.

Plus, there is a program that you can utilize for relief – but the deadline is October 31, 2022. This program will provide credits for any payments you made during the pandemic. For more information, please review this site, but understand you must have been employed for a government entity or for a 501(c)(3) during that time period.

To be clear, serving in the military does qualify as having a government entity – so active military with student loans should review this as soon as possible.

UP TO $20,000 IN RELIEF FOR YOU

In August, the White House officially made a one-time student loan relief payment into law. The summary from the federal government is:

The U.S. Department of Education (ED) will provide up to $20,000 in debt relief to Federal Pell Grant recipients and up to $10,000 in debt relief to non-Pell Grant recipients. Borrowers with loans held by ED are eligible for this relief if their individual income is less than $125,000 (or $250,000 for households).

Applications for the program are now open. Go to studentaid.gov, log in and go to student loan forgiveness to complete a simple application. People who think they are eligible will need to apply by December 1 for this debt relief.

This link has a tremendous Q&A for your reference, but here are a couple of questions that maybe of interest to you.

  • What kind of loans are eligible? The relief act specifically listed the following:
    • William D. Ford Federal Direct Loan (Direct Loan) Program loans
    • Federal Family Education Loan (FFEL) Program loans held by ED or in default at a guaranty agency
    • Federal Perkins Loan Program loans held by ED
    • Defaulted loans (includes ED-held or commercially serviced Subsidized Stafford, Unsubsidized Stafford, parent PLUS, and graduate PLUS; and Perkins loans held by ED)
  • What if my spouse and I consolidated our loans? One of the best parts of the legislation was that you can separate out the two loans for relief meaning if both you and your spouse received Pell Grants along with student loans, you could be eligible for up to $40,000 in relief.
  • What steps do I need to take now? Again, go to StudentAid.gov and make sure they have all your information. Plus, follow up with your servicer to make sure they have your current contact information.
  • What if I haven’t made a payment in a while? Defaulted loans are eligible to receive the relief. Additionally, there has been discussion of a Fresh Start program for loans that are default. Watch for information on this around July 2023. You can also look for a new income repayment plan that will start around July 2023.

Like with everything the government does, it’s not always easy to obtain the relief that is offered. There will be lots of questions and often it will not be easy to get someone on the phone to ask your questions.

Of course, our attorneys are available to help you with this and other issues facing your finances. It’s important that you start the process as soon as possible to get them back in order and get you on track to success.

The attorneys at The Orlando Law Group represent clients with financial difficulties in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you would like to schedule a consultation for student loans, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

October 18, 2022/by The Orlando Law Group

10 Things you should know about Personal Injury Claims in Florida

All posts, Blog, Personal Injury

One of the most well-known practices of law is personal injury. After all, our TVs and highways are bombarded with advertisements promising big payouts from national law firms.

While the perception maybe that bigger is better, the attorneys at The Orlando Law Group know that more often than not, personal injury cases are about ensuring you receive the highest possible amount in the resolution for your particular injuries.

We believe the best way to accomplish those goals is to work with attorneys who partner with their clients and understand deeply what is most important to them.

However, the start of making that happen requires you to take the right steps to prepare for the case.

Here are 10 things you must do to position yourself for the best possible resolution of your personal injury case if you are in a car accident.

  1. Seek medical attention from a hospital, urgent care, physician or chiropractor right away. This is by far the single most important thing you can do. Don’t wait for pain to arrive thinking nothing is wrong. If you think you might have been injured, go visit a physician as soon as possible because if you do not go quickly, you might not be able to recover all of the damages you might be entitled to.
  2. Take photos. Your attorney will want to see any current conditions that surround your injury. Was it a wet floor or a cracked sidewalk? This may be the only way you can prove those conditions existed. Photos of the location, the incident, and your injuries (before and during healing) can all be essential in a potential injury case. If it is a car accident, photos of your car and any other cars are essential.
  3. Keep all correspondence, bills, medical records, and repair estimates. Create a separate file both on your computer and for hard copies. Print and save every medical record, medical bill, repair estimates, emails and letters that are connected to your accident.
  4. Even if you don’t believe someone is at fault, talk to an attorney. We’re trained to see things that could result in a favorable resolution to your case.
  5. Speak to an attorney before speaking to an insurance adjuster. It’s important to realize they are not looking out for you (even your own adjuster sometimes). Their goal is to try and pay you as little as possible for your injury – if at all.
  6. Don’t give recorded statements to insurance companies. Again, they are not your friend. They are trained to get you to say things that will hurt your case in the future. Don’t provide a statement without an attorney present.
  7. Don’t sign any settlement agreements with any insurance company. Did we say that insurance is not your friend? If you sign a settlement agreement, that is the end of the case, and it’s usually for much less than what you could have received if you are patient and retained an attorney.
  8. When you search for an attorney, ask to speak to the attorney. Most large firms do not connect attorneys with potential clients. Instead, you’re working with an intake specialist. Understand that if a lawyer won’t speak to you when they are asking for your business, chances are that will be the standard throughout the case too.
  9. Find an attorney you like and trust. A personal injury case can be emotional and complicated. You want to work with someone who you enjoy working with, not someone who talks over you or who doesn’t explain and take time to address your questions and concerns.
  10. Understand it takes time to get a resolution and it’s not always favorable. Personal injury cases have a lot of nuances and many steps to get to the final resolution. Be patient and understand our goal is to get you the best possible resolution as quickly as possible.

The team at The Orlando Law Group is here to help you. We take every case very personally and pride ourselves on working with our clients to help them and ensure they understand their options.

For instance, there was a woman who hired a large law firm. Suddenly, she got an email the firm had decided to close out her case without any further explanation.

It turned out there was no insurance available, meaning there was no money to go after for her injuries. However, The Orlando Law Group took the case and was able to get one of the parties to provide medical payments coverage to the client, so she received something to assist with medical bills. Otherwise, the client would have had to pay 100% of her medical bills out of pocket for an accident that she was not at fault for.

It was a pro bono case for The Orlando Law Group, but this woman was not just a number to us. She was a person who we could help, and we did because that is what we do.

Did you or a loved one sustain injuries in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, or Kissimmee? We’re here to help you with a full team of attorneys who care about you and your circumstance and treat you with compassion while seeking the best possible outcome for you and your loved ones. You’re not just a number at The Orlando Law Group.

The attorneys at The Orlando Law Group represent clients injured in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout central Florida.

If you would like to schedule a free consultation for personal injury, please reach out to our office at 407-512-4394, fill out our online contact form or save this information in case you ever find yourself or a loved one needing to use it.

If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

October 10, 2022/by The Orlando Law Group

Real Estate Agents – What you need to know about For Sale Signs!

All posts, Blog, Real Estate

Overview:

Florida has seen an influx of new residents in recent years. In 2020 alone, 167% more people were moving into the state as compared to those moving out of the state. With hundreds of thousands of people flocking to the Sunshine State, cherry red “For Sale” signs are popping up all around neighborhoods to entice buyers. A homeowner planning to sell their home without the assistance of a real estate agent may place a “For Sale By Owner” sign in their yard on their own, but more commonly, “For Sale” signs are placed by a real estate agent. There is no requirement that states a homeowner or real estate agent has to place a “For Sale” sign in the yard of the property being sold, but it is somewhat customary to do so. “For Sale” signs encourage word of mouth around the community and alert potential buyers, can be eye-catching and attractive marketing tools, and make it easier for buyers coming to attend an open house or showing to locate the property being sold. Real estate “For Sale” signs may not only assist in selling the property you are representing as an agent; they may also assist you in attracting future leads and the community as a whole, bringing in not only buyers to achieve your client’s goal of selling their home or property, but also drawing in other prospective clients to boost your professional reputation and career. These signs can be a phenomenal marketing and selling tool, but it is important to understand the rules, regulations, and best practices of signage in order to make the most of your “For Sale” sign!

Digging Laws:

An often-overlooked step in the sign process is the physical digging necessary to place the sign in the ground. The Underground Facility Damage Prevention and Safety Act, Chapter 556, Florida Statutes, requires anyone who is digging or disturbing the ground to call 811 (Florida specific: 800-432-4770) or go to sunshine811.com and have underground facilities marked no less than two full business days before beginning any digging. The service is free and was created in order to prevent damage to both people and property. According to Call Before You Dig , utility locators from this service typically come to your home within two to five days after they’ve been contacted, not counting weekends. If you do not contact 811 and you accidentally damage a utility line while placing your “For Sale” sign, you could be hit with hefty fines and held liable for any damages by the state Utilities and Transportation Commission. Bottom line: If you are a real estate agent working to sell a home in the state of Florida, be sure to factor the utility location process into your plans to get the perfect timing for placing that “For Sale” sign.

Other Important Considerations:

Each state, county, and municipality has its own laws regarding the placement of signs. Under Florida Statute §479.16(3), signs posted or displayed on real property by the owner stating that the real property is for sale or for rent do not typically require permits. The Municipal Code for the City of Orlando (64.254) states that real estate signs are permitted in all zoning districts, provided that only one sign is erected for each street frontage of the property offered for sale, lease, or rent. Additionally, many homeowners associations (HOAs), condominium associations (COAs), and gated communities may have restrictions as to what can be placed or displayed in your yard or in front of your client’s property. It is your responsibility as a real estate agent to do your research and/or ask your clients about any possible rules or restriction which may affect the place of your sign, and to ensure that you are using the correct size, height, etc., as well as to make sure that you place the sign in an authorized location. Once the house is sold, you are also responsible for removing your sign.

It is recommended to keep the “For Sale” sign towards the middle of the yard, away from any trees, bushes or foliage, and closer to the sidewalk for the greatest possible visibility. You should also keep in mind as to if any cars are typically parked around the house that may block the sign’s visibility to potential buyers. It is additionally important to have your phone number, email address or website posted on the sign to encourage contacts from interested buyers. Some agents may also include a smaller sign at the top or bottom of the primary sign with other helpful information, such as a QR code for taking a virtual tour of the property, the property’s open house schedule, the listing price, possible benefits to the buyer, and features of the home, such as the number of bedrooms or special features like a pool or garden. Make sure the sign in legible and easy to read, and does not include too much distracting or unnecessary information unrelated to the sale of the property. In this digital day and age, it is recommended to post a picture with the house and the for sale sign to your social media accounts (with the client’s permission, of course) so that possible buyers can see it there and message you if they are interested.

Overall:

There is a great deal to consider when determining the placement of your “For Sale” sign. Remember to always check local laws as well as possible HOA and COA restrictions regarding sign placement, so that you do not lose your sign or face large fees. If you have questions about anything discussed here or regarding any of your real estate legal needs, feel free to give us a call at 407-512-4394. You will reach our Waterford Lakes office, which can connect you to any of our other numerous locations. Our experienced attorneys would be happy to answer any questions that you have regarding real estate and real estate transactions.

September 26, 2022/by The Orlando Law Group

Prenups and Postnups: Why you may want one

Alimony, All posts, Blog, Family Law

A prenuptial agreement is a document that outlines what happens to a couple’s individual and jointly held property, assets, debts, and inheritance, should the parties ultimately decide a dissolution of marriage is necessary, or should one of the spouses predecease the other. Florida is an equitable distribution state, so in the event of a divorce assets are divvied according to what the court deems fair, provided there is no prenuptial agreement. The judge would take into consideration things such as the length of the marriage, whether there are children, as well as the couple’s age, health, job skills and other factors.

Why should you have a Prenuptial Agreement?

A prenuptial agreement is very useful if you want certain assets to remain within a familial blood line or if you desire a clear division between your assets/debts and those of your spouse. Although at first glance, proposing a prenuptial agreement to your spouse prior to marriage may appear business-like and transactional in nature, it is ultimately a means to ensure that your hard-earned assets remain yours. Furthermore, executing a prenuptial agreement prepared by an expert family law and estate planning attorney can help to significantly reduce the costs of litigation should a dissolution of marriage ever occur, as many of the issues that create a contentious atmosphere during a dissolution of marriage (excluding child support) will already have been delineated within the prenuptial agreement, to be upheld at the time of dissolution, or even death. Such agreements may even include who shall be held responsible for such litigation costs.

What can be agreed upon?

Florida Statute 61.079 is the primary statute governing the use of prenuptial agreements, and outlines the following issues that may be agreed upon within a prenuptial agreement:

1. The rights and obligations of each of the parties regarding any sole or jointly owned property, whenever, and wherever acquired or located;

2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

3. Who gets what property should a separation, marital dissolution, or death occur;

4. Whether alimony is to be established, modified, waived or eliminated;

5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. Ownership rights in and disposition of the death benefit from a life insurance policy;

7. The choice of law governing the construction of the agreement; and

8. Any other matter, including the parties’ personal rights and obligations, not in violation of either the public policy of Florida or a law imposing a criminal penalty.

IMPORTANT TO NOTE: The right to child support or attempting to waive or limit child support cannot be prearranged and will not be upheld if it is included in a prenuptial agreement.

Validity

A prenup is valid and effective at the time of marriage, but may be held invalid upon a finding that:

  1. It was not VOLUNTARILY executed by one of the parties;
  2. It was a product of fraud, duress, coercion, or overreaching;
  3. A party was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
  4. A party did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided;
  5. A party did not have, or reasonably could not have had, adequate knowledge regarding the property or financial obligations of the other party; and
  6. The marriage is determined to be null and void.

What is a postnuptial agreement?

A postnuptial agreement is a contractual agreement outlining the distribution of each parties’ assets upon death or dissolution of the marriage. Similar to a prenuptial agreement in subject matter; the true distinction between a postnuptial agreement and a prenuptial agreement is that a postnuptial agreement is entered into by the parties after the marriage has taken place.

Validity

A postnuptial agreement is valid and effective at the time of execution. The following list of reasons a postnuptial agreement can be invalidated is not comprehensive and all encompassing, but includes as follows:

  1. The parties were not married at the time the agreement was entered;
  2. The agreement is not in writing signed by the two parties;
  3. The agreement was not entered into by the parties voluntarily;
  4. One party did not have adequate knowledge of the property or financial obligations of the other party;
  5. The agreement does not contain a consideration;
  6. The agreement is not signed in the presence of two witnesses and a notary.

Why should you have a postnuptial agreement?

Many times, parties accumulate more assets during their marriage versus when they were single, and never even consider the idea that a prenuptial agreement may be beneficial. A postnuptial agreement will allow for the clear distribution of old and new assets accumulating before, during and after the marriage, as well as old and new debts, including joint debts, without the significant stress of dividing everything by way of court proceedings.

Wills and Estate Planning

Should one of the spouses predecease the other, the terms within a prenuptial or postnuptial agreement regarding rights of a surviving spouse to the following: an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any other such rights; which were properly waived in a prenuptial agreement or postnuptial agreement, may be upheld, so long as the agreement was in writing and was signed by the waiving party in the presence of two subscribing witnesses and a notary.

Creating a plan for your estate

If you have questions regarding prenups, postnups, wills, estate planning and more, please call us at 407.512.4394 to receive assistance with the aforementioned options or estate planning in general. Our experienced family law and estate planning attorneys would be happy to assist you in developing a plan to safeguard your hard-earned assets in the event and ensure that your will is followed should a dissolution of marriage become necessary, or should a spouse predecease the other.

September 26, 2022/by The Orlando Law Group

School Truancy Laws

All posts, Blog, Personal, Special Needs / Education

Overview:

Did you know, a parent who fails to have a minor student who is under their care attend school regularly can be charged with a second-degree misdemeanor, punishable by imprisonment for up to 60 days and a fine up to $500? With back-to-school season upon us, it is important to understand school truancy laws across the state of Florida, the impact they have on lower income families, and the impact on children with special education accommodations.

Breaking Down the Law:

There is no clear national definition of truancy, as states are able to determine the number of absences and periods of time that make a child truant. Under Section 1003.26 of the Florida State Statute, truancy is defined as a juvenile offense that can be charged to anyone under the age of 16 who fails to attend school on a regular basis. Parents of truant students can also be held responsible under Section 1003.27 of the Florida State Statute. Florida Truancy laws state that any child between the ages of 6 and 16 must attend school. Once a child turns 16, they can file a formal declaration of intent to terminate school enrollment and are then no longer subject to compulsory education after the process is complete. However, anyone who has not yet turned 16 and fails to regularly attend school may eventually be deemed legally truant. The state of Florida considers a “habitual truant” to be any student of elementary school age through age 16 who has:

  • Accumulated 15 or more unexcused absences in a three-month period;
  • Without the knowledge of their parent or guardian; and
  • Are subjected to compulsory school attendance.

Florida has begun to conduct truancy sweeps on parents/guardians, and many have been charged with contributing to the delinquency of a minor and failing to comply with attendance laws. Jacksonville, FL is particularly known for aggressively pursuing truancy. Since they have begun to conduct truancy sweeps on parents/guardians, school attendance is at a 10-year high. While parents can face jail time, counseling, and fines, children also face punishment of their own. If a child is cited for habitual unexcused absences, they may be taken directly to a juvenile detention center. The juvenile court can then issue several different types of punishments on minors including:

  • Additional School: A truant student may be ordered to enroll in summer school or weekend classes in order to make up for the days of school missed.
  • Drug Screening: The court will sometimes require truant teens to undergo random drug testing and a drug education class if drug abuse is suspected to be part of the reasons for truancy.
  • Behavioral Therapy: A truant child may be required to attend counseling sessions.
  • Juvenile Detention: There is a possibility that the court will order a teen to a detention center or group home, particularly if this is not their first offense.
  • Probation: A court could place a teen on probation for a certain period of time where they would be required to periodically check in with a probation officer.
  • Suspended License: Public schools are required to provide the Department of Highway Safety and Motor Vehicles with a truant student’s legal name, sex, date of birth, and social security number. These students may not be issued a driver’s license or learner driver’s license from the Department. If they already have a previously issued driver’s license or learner driver’s license, their license could be suspended.

Impact on Low Income Students:

The Center for American Progress found that in 2012, an estimated 7.5 million students were chronically absent nationwide and, according to several other studies, low-income students and students of color were more likely to be absent.  Furthermore, research from Johns Hopkins University suggests that of the 15 percent of American students who are chronically absent, a quarter miss school primarily because their families can’t afford transportation or the students are expected to babysit younger siblings or care for sick relatives. The economic burdens that truant students’ families often already face can be compounded by the hefty fines they are ordered to pay under truancy laws.

Impact on Special Education Students:

Many children with learning disabilities are bullied in schools, leading some children scared to go to school out of fear that they might be bullied. This fear of bullying, along with additional challenges in school (such as feeling left behind or underchallenged) can cause special education students to not want to attend school. There can be some assistance in avoiding truancy penalties for special education students if they have an Individualized Education Plan (IEP). To learn more about Individualized Education Plans and how to navigate them, check out our previous blogs: Individualized Education Plan (IEP) and 504 Plan Eligibility in Florida & Individual Education Plan Enhanced: Our Top Five Tips.

For students with special education needs, further requirements to prevent truancy charges are provided by the Individuals with Disabilities Education Act (IDEA). Public School Districts are required to assess special education students in all areas related to their disability, including the student’s functional performance. Truancy is related to the student’s performance, thus, if a student with special education needs is truant, the school district must conduct a Functional Behavioral Assessment in order to determine the reason behind the truancy. Results of these assessments can be then utilized to develop an appropriate Positive Behavior Support Plan to address the truant behavior, hopefully avoiding steep financial penalties and jail time.

Overall:

Truancy laws can be difficult to navigate and oftentimes have a disproportionate impact on low income and special education students. At the Orlando Law Group, our attorneys help parents understand their legal rights and options for their child’s education. We represent parents in obtaining appropriate legal services for their children and help parents in advocating for their children and their right to a safe and effective education. If you have questions about anything discussed in this article or other legal matters related to education, give our office a call at 407-512-4394.

August 18, 2022/by The Orlando Law Group

Estate Planning for LGBTQ+ Couples

All posts, Blog, Wills, Trusts & Estates

Overview

It has been a little over seven (7) years since Obergefell v. Hodges made same-sex marriage legal in all 50 states. This historic Supreme Court decision opened the legal benefits of marriage to same-sex couples all across the country, including easing the process of estate planning. Today, married same-sex and LGBTQ+ couples’ estate planning is largely the same as estate planning for any other married couple. However, LGBTQ+ couples are less likely to get legally married and they may have children where only one or none of the partners is the child’s biological parent. This can complicate the estate planning process and is why estate planning is even more important for LGBTQ+ couples.

With the overturn of Roe v. Wade, there has been increased discussion about the future of other privacy rights, including same-sex marriage. In his sole concurring opinion, Justice Clarence Thomas indicated that the Supreme Court should reconsider previous rulings regarding privacy rights, including those that established the right to contraception, same-sex marriage, and protections for same-sex relationships. While no one wants to think of what would happen if they passed away, it is necessary to make sure your possessions get passed along the way you prefer, and not caught in the convoluted purgatory of probate. Read more about estate planning steps you should consider, particularly in light of recent political developments.

The Importance of Estate Planning

Careful and well-thought-out estate planning is essential for anyone who wants to protect their assets and loved ones regardless of sexual orientation; however, experts agree that it is likely more critical for same-sex couples and families due to marriage equality laws. While there is no need to draft estate planning differently from heterosexual spouses, same-sex couples need to make an effort to check the estate planning documents they already have to make sure they have language consistent with current laws, and, if couples do not already have one, to begin developing an estate plan. A typical estate plan may include:

  • A Last Will and Testament – the primary document regulating your wishes as regards inheritance and guardianship of persons (such as minor children) and property;
  • A Trust – protects assets for the benefit of yourself and/or specific persons;
  • A Living Will (also called a Designation of Health Care Surrogate) – specifies your intent in regard to decisions on your physical well-being and end-of-life arrangements;
  • A HIPAA Release and Authorization – allows person(s) designated by you to receive your confidential health information;
  • A Durable Power of Attorney – enables a trusted Agent to make financial and/or medical decisions for you in the event that you are incapacitated; and

If you die without a will or trust, state laws of intestate succession will determine who inherits from you, potentially leaving your partner of many years with nothing. This can be particularly important if you are estranged from your family or expect any family conflict over the assets you will leave. In Florida, Florida Statute Sections 732.101-109 explains that when someone passes away without a will, or trust, all assets go to their closest relatives. The first to inherit is the surviving spouse; however, there must be a valid, legal marriage to be a surviving spouse. This is particularly important for LGBTQ+ couples, as the recent U.S. Census Bureau Data reports that about 42% of couples in the nearly 1 million same-sex households in the United States were unmarried partners. Without sufficient estate planning in place, an unmarried partner is likely to be overlooked in asset distribution. Taking control of your estate and the division of your assets through estate planning means that you can protect yourself and your assets and provide for your loved ones by your own intentions, and not that of the state. Estate planning is important for everyone, regardless of relationship or family status. For members of the LGBTQ+ community, it is even more important to treat these matters formally, without relying on default rules of state law.

Even if you already have an estate plan, it is imperative that you revisit that plan in order to ensure that it remains relevant under your current family and financial circumstances. If your estate planning documents were created before same-sex marriage was legalized across the country and you have since married, it is important for all of your documents to have consistent language that reflects that. The Human Rights Campaign offers a comprehensive step-by-step guide on estate planning for LGBTQ+ couples and their families for free that explains this importance.

Extra Assistance with a Special Deal

We recognize the sense of urgency that many couples are facing in light of the Supreme Court decision and hope to alleviate some of this burden by offering a special deal to LGBTQ+ couples in their estate planning matters. We are currently offering FREE health care estate planning documents including Combination Living Wills and HIPAA Release and Authorizations as well as Durable Power of Attorneys to LGBT+ couples in order to help you and your family plan for the future. Call 407-512-4394 to discuss scheduling a consultation with an estate planning attorney to take advantage of this opportunity for the months of August and September.

Overall

This article is not a substitute for consulting with an estate planning lawyer at our firm who is well-versed in the issues facing LGBTQ+ individuals, couples, and families. Thorough and proper estate planning is vital to ensuring that your wishes are carried out during your lifetime, and that your assets are passed along to your loved ones in the manner you desire after your death, which can potentially be more complex for the LGBTQ+ community. Our experienced estate planning attorneys understand the challenges LGBTQ+ individuals of all marital statuses face. If you have questions about anything discussed here or involving estate planning, feel free to give us a call at 407-512-4394. We bring experience and sensitivity when assisting members of the LGBTQ+ community in planning for asset protection, incapacity, and end-of-life issues.

August 18, 2022/by The Orlando Law Group

Special Education Matters: Public vs. Private vs. Charter Schools

All posts, Blog, Personal, Special Needs / Education

Overview:

With back-to-school right around the corner, many parents are beginning to ask themselves what type of school is best for their children. This question is particularly important for parents with children that require special education services. While there is not a right or wrong choice for your child, it is important to know the legal requirements that each type of schooling system must meet for special needs students in order to make the most informed decision you can. Regardless of which school system you choose, one of the most important things you can do as a parent is to be your child’s advocate and get involved in their education.

Public Schools:

The federal Individuals with Disabilities Education Act (IDEA) is a law that makes available a free appropriate public education (FAPE) to eligible children with disabilities throughout the nation and ensures special education and related services for those children. Under this Act, special education and related services must be provided by the public school system at no cost to the parent, meet the standards of the state, and be in conformity with the student’s individual education plan (IEP). Special needs include learning disabilities, such as autism, but it also includes gifted learners. Florida state law and IDEA both require school districts to provide special instruction and services to gifted students. IDEA also funds early intervention for children with recognizable disabilities to minimize the problem in developmental delay. Additionally, under Section 504 of the Rehabilitation Act of 1973, public schools cannot discriminate based on their disability, meaning they must accept all students who apply, including those with disabilities. The Individualized Education Program (IEP) is also a major aspect of IDEA. To learn more about individualized education plans and how to navigate them, check out our previous blogs: Individualized Education Plan (IEP) and 504 Plan Eligibility in Florida & Individual Education Plan Enhanced: Our Top Five Tips. Although IDEA has been incredibly successful in improving the quality of education for this population, there are still continued challenges. Some of those challenges include poor assessments, limited training for teachers, large class sizes, and eligibility barriers that prevent students from receiving special education. This can sometimes cause parents to seek other options, such as private and charter schools.

Private Schools:

While public schools are bound to a plethora of state and federal laws, the same cannot always be said about private schools. The Individuals with Disabilities Education Act (IDEA 2004), which covers special education law, does not apply to individuals placed in private schools (including religious schools) by their parents. This does not automatically mean that private schools will not accommodate students with special education needs. In fact, many private schools will voluntarily follow a similar framework as public schools for academic accommodations; however, most will have a unique process for accommodations that is specific only to that school’s program. It is extremely important to discuss early on with the school principal or administrator about that process, and to receive that information in writing.

Depending on the amount of federal funding the school receives, if any, the school may be required to follow portions of Section 504, meaning the school cannot discriminate against a child with a disability for reasons related to the disability and might be responsible for providing modifications and accommodations. For example, most private schools are willing to provide some minor classroom accommodations (such as extended time for tests), but they are not required to do more. Because private schools are not bound to the same regulations and protections regarding special education as public schools, if an issue or disagreement does arise within your child’s private school, it may be more difficult to challenge that decision by way of legal action. This also means that unlike public schools, private schools can accept or reject any students they choose to. Private schools can be a phenomenal option if you have found that public schools are not meeting your child’s needs. While they are not obligated to meet the minimums of education law, some schools are tailored for students with ADHD and learning disabilities, and will voluntarily exceed the minimums required of public schools. This can make them a wonderful option for families who did not feel as though their children’s needs were met by the public school system. There is a third option that is becoming increasingly common: charter schools.

Charter Schools:

According to the Florida Department of Education, charter schools are among the fastest growing school choice options in Florida, with student enrollment now topping 341,900 students in the 2020-21 school year. While state laws often grant charter schools some freedom from meeting public education regulations, charter schools must follow all federal laws that apply to any other public school, including IDEA. Florida law relating to charter school education requires that students with disabilities have an equal opportunity of being selected for enrollment in a charter school (Section 1002.33). Because charter schools are still public schools, it is against the law for charter schools to discourage kids with disabilities from attending or applying. However, in reality, this legal regulation does not always necessarily work out in favor of special education students as some parents might hope. Note that all students do need to apply to attend charter schools, which often have very limited spots available, making it challenging to get in.

Overall:

While there is no “one size fits all” solution to determining the best school system for your child, it is always important to take your child’s unique needs along with legal requirements into consideration. At the end of the day, the ultimate goal is to find an environment that allows your child to reach their full potential where they feel comfortable and confident. If you have any questions at all, call us at 407.512.4394. When advocating for your child, you can have an attorney help you understand yours and your child’s rights, and to make sure nothing is getting overlooked when tailoring your child’s education to suit their needs best. We have experienced education law attorneys and staff that have worked hard to make their children’s, and their clients’ children’s special education experiences the best they can be. We are here to help you, and care deeply about this aspect of what we do as a full-service law firm.

August 5, 2022/by The Orlando Law Group

The Ins and Outs of the Association Collections Process

All posts, Bankruptcy, Blog, Home Owners Associations (HOA), Real Estate

Most Associations have the legal right to place a lien on a home or unit to secure the payment of past due assessments.  To determine if your Association has this right, you will look to your Association’s Declaration of Covenants, Conditions and Restrictions. In the Declaration, there will be a section that details what happens if an owner is delinquent in the payment of assessment to the Association and it typically grants the Association the right to secure that debt by recording a lien against the owner’s property. You also have the right to foreclosure on that lien similar to the way a bank forecloses on a mortgage. But what does this really mean? It means that an Association does not have to sit and wait for the sale of the property for the Association to get paid, as the Association can force a sale on the property. Remember, in a foreclosure action, the primary goal of the Association is not to take title to a property but to force a sale on that property so that the Association can retrieve the money owed to the Association.

How does the Foreclosure Process Work?

  • First, the Association must send the required statutory letters to the delinquent homeowner and have a lien recorded against the property.
  • Then, a lawsuit is filed and served which results in a court judgment. If the judgment is not paid, the court orders a sale of the property at a judicial sale.
  • Anyone may bid at a judicial sale. The money paid at the sale is applied by the Court to pay the outstanding judgment.  The Association may also bid at the sale.  For bidding purposes, the Association is allowed to use an amount of the court judgment like cash at the sale to bid on the property if it chooses.
  • In a foreclosure action, all inferior lien interests are extinguished and the winning bidder at the judicial sale takes title free of all inferior interests.
  • A Condo or HOA lien is a second lien position to a first mortgage. If the property is being foreclosed, the bidder at that sale takes the home or unit free and clear of all inferior liens, however, the property is still subject to the superior first mortgage. Therefore, a bidder will take into account the remaining mortgage on the property and bid accordingly.
  • An Association is not required to bid in its foreclosure action and therefore is not required to take ownership of the property.

What if there is a Tenant in the property?

  • If a homeowner is delinquent in the payment of his/her obligations to the Association, Florida Statute allows an Association to recover these funds from any tenants occupying the property.
  • The statute allows an Association to collect the entire rent check from a tenant of a delinquent homeowner without having to file the foreclosure lawsuit by sending a demand letter to the tenant informing him/her of the obligation (including amounts and when they are due) and directing the tenant to send the necessary amounts to the Association.
  • If the tenant (with a valid lease) fails to send the Association the rent checks, the Statute allows the Association to evict the tenant from the property.
  • The eviction process includes: a 3-day eviction notice posted on the property, a lawsuit filed against the tenant, and the tenant served with an eviction summons.
  • The tenant has five days to file an answer and deposit the amount in question with the court. If no answer is filed, the Association will file a motion and order a default judgment for eviction.  A judgment for eviction will be entered and a Writ of Ejectment will be issued.
  • An Association should proceed with caution when considering evicting a tenant. Consider all factors involved. If the tenant is taking care of the property and is a good neighbor, it is most likely that the delinquent homeowner convinced the tenant that the delinquency had been taken care of. If the Association evicts the tenant, this could result in a vacant, non-maintained property.  However, if the Association continues with a Court ordered receivership through the foreclosure against the homeowner, it will most likely collect rent and keep the property occupied.
  • In a receivership, the tenant must be served with the foreclosure complaint. Next, a motion is filed with the Court and a Judge signs a receivership order.  This order is then served on the tenant instructing the tenant to make his/her rental payments to the receiver who will disburse the funds to the Association. If the tenant fails to comply with the receivership order the Judge will issue a warrant for the tenant’s arrest. Typically, receiverships are reserved for after a complaint has been filed in a foreclosure action against the homeowner.

Other Frequent Questions Regarding Association Collections

  • If the Association takes title to a property in a foreclosure, does the Association have to pay the mortgage or property taxes?

There are two common misconceptions that often keep Associations from proceeding forward on their right to foreclose on a property.

  1. An Association is NOT obligated to pay the mortgage on the property. If the mortgage is not paid or other arrangements made with the lender, eventually the bank will take possession away from the Association.  However, the lender cannot sue the Association for mortgage payments.
  2. An Association is NOT required to pay the property taxes. If the taxes are not paid, after two years possession of the property may be taken from the Association through a tax deed sale.  However, the County cannot sue the Association to collect or otherwise make the Association pay these taxes.
  • How is a Personal Judgment different from a lien foreclosure?

Unlike in a lien foreclosure action, in a personal judgment, the parties (Association and homeowner) are required to attend a mandatory mediation. If the homeowner attends, a settlement can sometimes be reached.  If a settlement cannot be reached, or if the homeowner does not participate in the mediation, a hearing will be scheduled.  A personal money judgment will be entered if the Association prevails at the hearing.

  • What is the process for a Personal Judgement?

The homeowner will be sent a 30-day Demand Letter requesting payment in full.  This letter is to satisfy the requirements of the Federal Fair Debt Collection Practices Act.  If at the conclusion of the demand letter period a response has not been received, or full payment has not been received, a one count complaint will be filed in county court that will be followed by the mediation process.

  • Why is it important to have a Personal Judgement recorded?

The main purpose of recording the judgment is to encumber the assets of the homeowner to prevent the homeowner from selling or refinancing any of the assets without first satisfying the judgment.  At a minimum, this judgment would be recorded in the public records and become a lien on any non-homestead property located in the County that it is recorded.

  • What rights does the Association have in trying to collect on a Personal Judgement?

The Association has the right to proceed against the property of the homeowner through Writ of Execution, garnishment, or other judicial processes.

  • What steps does the Association need to take to recover on a Personal Judgement?

Some of the steps that need to be taken include: a Writ of Execution delivered to the sheriff or marshal, the sheriff or marshal levying upon assets of the homeowner, and the sheriff or marshal selling as much personal property and real property as has been levied upon in order to satisfy the judgment.

  • What are the different types of bankruptcy that a homeowner can file?

There are three types of bankruptcy: Chapters 11, 7, and 13.  The two that usually affect Associations are Chapter 7 and 13.  In Chapter 7, the debtor has little or no income; and their personal obligation towards most of their debt is discharged.  Chapter 13, on the other hand, is a debt repayment plan.  Please note that most often bankruptcy will only dismiss a homeowner’s personal obligation and does not affect the Association’s right to foreclose on its lien. But in recent years we have seen the Association lien being stripped in Chapter 7 cases.

  • What are pre-petition and post-petition assessments?

Everything that the homeowner owed up to the date the bankruptcy was filed is pre-petition and is included in the bankruptcy proceedings. Everything from that date forward is post-petition.

  • If you do not receive official notice of the bankruptcy from the court do all the rules still apply?

Once you have actual knowledge of the filing, all the rules apply.  If the Association is not named, once the bankruptcy is completed the Association can pursue both a lien foreclosure and personal judgment against the homeowner for all delinquent assessments.  However, the association should not pursue any collection action against the homeowner/tenant in property while the bankruptcy is pending.

  • How do you collect post-petition assessments?

A homeowner is supposed to automatically make their post-petition assessments.  However, very often this does not happen.  In this case the Association has two options: wait until the stay is lifted (bankruptcy is completed) and then go after the homeowner, OR apply for relief from stay from the court and then go after the homeowner, while the bankruptcy is in progress.

These are general guidelines and do not apply to all situations equally. Each Association and each situation may add its unique challenges that the Board must take into account when making decisions. However, this basic information along with any Association’s Governing documents as well as the assistance of an experienced Association Law Attorney should be sufficient for an Association to adopt an appropriate collection policy suitable for their community that will be fair and equitable to all its residents.

For any and all questions relating to the collections process; or to the legal rights, obligations and operations of a Homeowners or Condominium Owners Association, please contact our office at 407-512-4394 to schedule a consultation with an Association Law Attorney.

July 25, 2022/by The Orlando Law Group
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