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

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

HOA and COA’s may finally see some relief in the Safe Harbor nightmare that they currently are faced with.  The Florida Statutes, as they are currently written, require Banks, who are the foreclosing first mortgagee, to pay an Association the lessor of 12 months of assessments prior to the issuance of the certificate of title in their name or 1% of the principal mortgage amount.  It is not that cut and dry, but in most cases that is all the Association is entitled to recover when the bank is the highest bidder.  If you are an Association, it is imperative that you have an Attorney review the case to make sure that you correctly identify whether safe harbor applies and that the entity who took title is in fact a first mortgagee as contemplated by the Florida Statutes.

Does it seem that your Community Association is wearing a large target, that your community is now, increasingly, the target of law suits?

Florida Community Associations are under fire from both inside and out by individuals and groups who see Community Associations as a “target rich” environment for claims ranging from alleged “Fair Housing” violations to environmental claims to allegations of failing to maintain Association property.

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

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

Notwithstanding the fact that unit owners successfully sue their own Condominium Association, and that a Final Judgment, including attorneys’ fees and costs, is entered in favor of the unit owners and against their Condominium Association, the Condominium Association is still entitled to assess the unit owners, and the unit owners are required to pay that assessment, in order to satisfy the Final Judgment. 

In the last several years, Clayton & McCulloh has received a number of inquiries from our clients as to whether a certain owner of a home within a residential community (HOA, Condo, etc.) would have the right to run a “community residential home” within the community, even if the Association’s Governing Documents provide that the community shall have single-family residential occupancy.  Regardless of your Association’s understanding of its documents, in accordance with Florida law, specifically Florida Statute 419, your community may be required to allow for the use of a certain home or homes for “community residential home” purposes.

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

There is a growing trend in community associations nation-wide arising from recognized changes in the Fair Housing Act (the “FHA”) as well as in the Americans With Disabilities Act (the “ADA”) that require pets, primarily dogs, to be permitted in previously animal-free or restricted communities. The reason: people with disabilities have been found to cope with life’s demands more ably with an animal by their side.  The disabilities which are said to be positively impacted by the assistance of an animal include epilepsy and seizure disorders, diabetes, various emotional and attachment disorders, and, of course, persons with diminished vision or blindness.

With the start of the New Year, many Associations will be having their Annual Membership Meetings within the next month or two.  Because some Directors may not be re-elected or decide not to accept nomination to be a Director again, issues may arise regarding what items in possession of the departing or “X-Director” are part of the Association’s “Official Records” and, therefore, should be returned or delivered to the Association for its maintenance as part of its Official Records. 

I recently heard a popular estate planning guru boldly make the following statement: “Everyone should have a living revocable trust.” Because of this person’s popularity in social media circles I saw many blind followers respond in ‘knee jerk’ fashion by spending several thousands of dollars to creatively construct living trusts to distribute their assets when they die.

Don’t get me wrong, I’m not opposed to living trusts (sometimes called inter-vivos trusts).They can be helpful estate planning tools. I have created numerous living trusts myself. What I am opposed to are short sighted statements that presume ‘one size to fit all’ no matter what they be.