The October Issue Includes: Moratorium Expires Cast Your Vote for C&M! Ask C&M - Submit a Question Preparing Your Own Lien Could Cost You CM On Demand Board Certification Classes Free Webinar October 8th- "Difficult People" Free Webinar October 22nd- "Vendor Panel" What Do You Want to Read? Win a Gift Card! C&M Social Media - Follow Us! Follow Us and Win a Gift Card! About The Green Marble Valued Business Partners

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Florida Mortgage Foreclosure and Eviction Moratorium Expires in Favor of Federal Moratorium By Alan Schwartzseid

Clayton & McCulloh has closely monitored Florida Governor Ron DeSantis’ mortgage foreclosure and eviction moratorium via Executive Orders beginning with No. 20-94. See, e.g., What the Heck is Going On with Florida Foreclosures?! and Limited Extension of Mortgage Foreclosure and Eviction Relief. The most recent extension – pursuant to EO 20-211 - expired at 12:01 a.m. on October 1, 2020, so for the first time since April 2, 2020, no Florida-imposed moratorium precludes a lender from proceeding with a foreclosure action, or a landlord from proceeding with an eviction action, for non-payment. However, that does not necessarily mean a sudden landlord/lender free-for-all has arrived. In fact, the reported rationale for Gov. DeSantis allowing Florida’s moratorium to expire is the nationwide residential eviction moratorium enacted by the U.S. Centers for Disease Control and Prevention (“CDC”) in early September 2020. See “Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19.” Under the CDC Order, qualified individuals cannot be evicted from their residence, through December 31, 2020, for non-payment of rent, if they each individually provide their landlord/payee a “declaration” regarding their inability to pay rent, in a form substantially similar to one created by the CDC. The CDC Order still allows eviction for reasons other than non-payment of rent. Accordingly, it could - but would not necessarily - preclude a landlord from declining to renew a lease and evicting based on the lease expiring. The CDC Order imposes criminal penalties on individuals up to $100,000 and/or one year in jail if no death results from the violation, or up to $250,000 and/or one year in jail if a death results from the violation. These monetary penalties double for “organizations” (presumably, corporations). Moreover, any penalty “otherwise provided by law” may also be imposed. Accordingly, violating the CDC Order is a bad idea. Such violations are not defined in the CDC Order, and could thus ostensibly include even requesting the issuance of a Writ of Possession following the entry of a judgment.

The CDC Order affords some prospective relief to landlords: despite deferring final enforcement of a lease, it does not relieve any individual of any payment obligation, or charging or collecting related fees, penalties, or interest on unpaid installments. It also does not appear to prohibit a court from completing a foreclosure sale, which could ostensibly mean that a lienholder (e.g., a mortgage lender or community association) could foreclose its lien, a certificate of title could be issued to the purchaser, and that purchaser could be “stuck” with the former occupants until at least December 31, 2020. It could also mean that as of January 1, 2021, all rent which was “deferred” by virtue of these eviction prohibitions will comprise more than half of the tenant’s 2020 rent, plus penalties, thus leading to the flood of evictions which many fear. It is also unclear whether any relief will be afforded to Florida landlords given their inability to fully enforce non-payment of rent since April 2020. If not, we an uncommon influx of foreclosure proceedings against landlords may be incoming, as many residential landlords use such rental income to pay the mortgage. Finally, it is also crucial to note that while Gov. DeSantis’ moratorium was lifted, some local (e.g., district or circuit court-wide) Covid-19 related orders remain in effect. Nothing within any law presently in place (including the CDC Order) precludes local municipal or judicial orders from imposing more restrictions on landlords or foreclosing lienholders.

Please Vote for Clayton & McCulloh The Florida Community Association Journal's Readers' Choice Award We’ve been nominated once again for the Florida Community Association Journal’s Readers’ Choice Awards! If you think we are deserving of your vote, we would greatly appreciate it if you took the time to vote for us. Simply click on the button below, and follow the instructions on the page.

Want to Ask Us a Question? If you have Community Association questions that you would like an answer to, please submit your questions using the button below. We regret that we cannot answer every question submitted. The following is the criteria of what may or may not be answered: Do not submit questions that require the review of your Association's Governing Documents. Do submit questions on statutory issues. Do not submit questions that libel or slander another Association, Board or Committee Person, or your Manager. Do submit questions even if you are a client of C&M Do not submit questions which require a lengthy recitation of background facts. Do submit questions on COVID-19. If you do not see your question published within two issues, please feel free to call us to ask if there were parameters of your question that did not meet our criteria. Feel free to submit as many questions as you would like. Your questions can be on legal issues or practical issues that face Community Associations today such as how to increase resident involvement in your community or social media. We want to hear from you! Send your questions by selecting the button below. Ask C&M is a column featured in our monthly digital newsletter, "C&M Update."

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Why Preparing Your Own Lien Could Cost You, Personally By Partner Alan Schwartzseid  Some of our clients - especially self-managed communities – ask whether they can prepare their own Claim of Lien in an assessment collection context. Theoretically, this sounds like an excellent cost and time saving option. However, doing so is not only a bad idea, but may be prohibited by Florida law. Essentially, even if prepared 100% correctly, anyone other than a Florida licensed attorney preparing these documents may actually be involved in the unauthorized practice of law, a third degree felony pursuant to F.S. § 454.23. Non-lawyers in Florida may not draft a community association’s Claim of Lien or Satisfaction of Lien in a construction context. In fact, in The Florida Bar re: Advisory Opinion, 681 So.2d 1119 (Fla. 1996) and The Florida Bar re: Proposed Advisory Opinion FAO #2012-2, the Florida Bar found that preparing these documents constitutes the unauthorized practice of law. Florida case law has not specified that the same applies to preparation of assessment liens, but the logic behind these Florida Supreme Court decisions and that of Fla. Bar ex rel. Advisory Opinion - Activities of Cmty. Ass'n Managers, 177 So.3d 941 (Fla. 2015) at least implicitly extends to assessment liens. That opinion stated that preparing documents “that required the interpretation of statutes, administrative rules, community association governing documents or rules of civil procedure constituted the practice of law [and that] drafting documents, even if form documents, which require a legal description of the property or which determine or establish legal rights are also the practice of law.” Id. at 946. It also held that calculating timelines for compliance under Florida Statutes or the governing documents requires legal analysis. Id. at 948. While not expressly mentioned the determination of whether a statutory Notice of Intent to File a Claim of Lien has expired could comprise a similar activity and constitute legal analysis under the 2015 opinion. That opinion contemplated community association managers, who ostensibly have more training than directors; thus it is clear that managers cannot perform these non-ministerial acts, and strongly implied that directors may not do so, either.

Given the risk of potential criminal charges, the cost of having counsel prepare these documents could be tens of thousands of dollars less than that of defending potential felony charges, which would not customarily be covered by the Association’s Directors and Officers’ liability insurance policy. For practical purposes, this means that instead of a few hundred dollars paid by the Association, the individuals involved (likely directors who are not paid for this activity) could risk incurring tens of thousands or more in defense costs. That risk is clearly not advisable or worth taking. Moreover, in our experience, most non-attorneys rely on the Association’s official records to determine the information to include in a Claim of Lien. This creates several risks: The Association’s records may be outdated, and naming a former owner in the Claim of Lien risks violating F.S. § 559.72(9) (a portion of the Florida Consumer Collections Practices Act, or “FCCPA”) which prohibits, inter alia, claiming a debt against an individual who does not owe it. Likewise, if no research has been performed as to whether the parcel/unit has actually been subjected to the Association’s governance, even the actual property owner may not owe assessments. A lien naming those individuals would be recorded proof of an FCCPA violation, which could result in lawsuits against the Association, the drafter, and/or the signor of the lien. A legal interpretation of who is obligated to pay assessments is crucial to a proper Claim of Lien. A title search report (which we obtain prior to preparing Claims of Lien) should be obtained to verify the correct legal description, ownership, etc. Many accounting systems are incapable of applying payments pursuant to Florida law when received (i.e., to interest, then late fees, then to attorney’s fees and costs incurred in collection, and then to unpaid assessments). This can cause inaccurate calculations and thus inaccurate and ineffective Claims of Lien, which could also violate the FCCPA. Recording an inaccurate Claim of Lien could result in lawsuits for quiet title, slander of title, etc. As mentioned above, a title search report and proper legal analysis can limit this risk. Any invalidity in a Claim of Lien may require that your attorney “start over” with a new collection process, or may cause the Association to be unable to foreclose its lien, meaning the Association may be limited to recovering via a money judgment (if at all) and/or may be obligated to pay the owner’s attorney’s fees and costs incurred defending the foreclosure claim.

Like a Claim of Lien, a satisfaction of lien requires a legal interpretation of when the account is paid through, among other legal analysis that may constitute the unauthorized practice of law. Improper drafting could even inadvertently release the property from future assessments, rather than only the assessments already paid. If a Release of Lien is recorded before full payment actually clears the bank clearing process, the Association may need to “start over” in the collection process, which could result in the Association bearing some of the costs incurred, in an unfortunate effort to avoid those very costs. Notably, management firms who “record” these documents tend to use “in-house” or “preferred” attorneys, who are in fact capable of preparing proper documents; the fact that your management firm is using such an attorney is not necessarily problematic, and may in fact result in lower overall collection charges. In summary, we strongly recommend that only Florida licensed attorneys prepare an assessment Claim of Lien or Release of Lien on behalf of a Florida community association, and that all communities ensure that their collection efforts are fully supportable and proper.

Take the Board Certification Class on Your Schedule

Wow! We are so excited that so many people have taken our CM On Demand Board Certification classes since its launch on August 3rd. Now you don’t have to wait until a live seminar or webinar is offered to fulfill your statutory requirement to your Association. You can take a class at 2 a.m. on a Saturday or whenever your heart desires. Simply visit our website and complete the form. Within a few minutes, you will receive a Confirmation and Instructional Email on how to view the class and receive your Certification.  Some points to remember:  Please don’t sign up for the class unless you have put aside 2 – 2 ½ hours aside within twenty-one (21) days of making the reservation.  To ensure you receive your Confirmation (and Certificate), you should add pr@clayton-mcculloh.com to your email contacts. Do not share the link. This is an automated system and if you share it with someone else, they will not receive credit. Each person must complete the form themselves. If you want to take more than one class (e.g., the HOA and the Condo class), complete two forms putting the Association’s name that you are signing up to receive certification.  If we do not receive a survey within four hours of your completion of the class, we regret that we cannot provide your certification. Upon successful completion of the course, you will receive your Certificate within twenty-one (21) business (not calendar) days. For the most part, this is an automated system. Please read the website and your Confirmation and Instructions email in depth as it will expedite your Certificate within the 21 days.  So, pop the popcorn, pour your favorite beverage, grab your pen and pad, settle in your easy chair, and view this class on your computer, smart phone, or tablet!  To find our new CM On Demand classes, click on the button below. Then simply select which class you want to take. Upon completing a short registration form, you will receive an instructional email with the link to the class and instructions to how to receive your Certificate of Attendance.  Another personalized service from Clayton & McCulloh, the firm that Embraces Community. Shouldn't your Association have a law firm that puts you first?

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Free Live Webinar! Everybody’s Somebody’s Fool: How to Handle Difficult and Abusive People Thursday, October 8th Class Starts: 6:30 p.m. At one time or another, every Board Member and Manager encounters a difficult person – whether it is another Board Member, Manager, or a resident. Sometimes, the situation becomes abusive. So how do you handle these delicate situations? Our featured speaker will go into various methods of defusing these volatile people before it escalates into something perhaps more substantive. Pre-submitted questions are invited. To submit your question, please click the Submit Question button below.

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Free Live Webinar! 2020 Season Finale! Oh, What a Night! Elite Vendor Panel Discussion Thursday, October 22nd Class Starts: 6:30 p.m. Door Prize Awarded! Virtually join us for our most versatile and interesting event of the year and the crown jewel finale webinar for 2020! In this very special webinar we feature the following panelists to answer the questions that you want to hear: Five Star Claims Adjusting. Has your Association (or you personally) filed a claim with your insurance company and their offer for payment for the claim simply does not work for you? If so, get ready to talk to the largest public adjust firm that is licensed, bonded, and insured by the State of Florida. Don't currently have a claim? Tune in to prepare for 2021's Hurricane Season! Paradigm Broadband Group. An industry-leading broadband consulting telecom asset brokerage firm is part of this prestigious panel ready to answer your questions on internet, cable, phone, and security products. This powerhouse artfully negotiates these products for thousands of communities and commercial properties across the United States. Be ready with questions on how they can help your Association with these services. The Lake Doctors. If your Association has any lakes or ponds, you won't want to miss the chance to ask this family owned and operated company solutions for your problems. Orlando Prestige Painting & Restoration. Now is a great time to have your home, condominium, or clubhouse painted! Ask Orlando Prestige about your upcoming projects and restoration work. ServPro. COVID has affected so many Associations in Central Florida and this company has the answers on how to handle it in your Association. Have questions about storm, water, or fire damage? They have the answers! What about mold remediation or biohazard projects? They offer solutions for those issues too! Get ready to pick their brains and get answers. Clayton & McCulloh. Need legal information for your Association? Our attorneys will assist you with legal information to help your Association solve those challenges! We've assembled an elite team of amazing companies from all areas to answer those questions you have had lingering. What do they see as the next big problem for Associations? Chat with professionals for free! No fee for this special event. Since there is no Certificate for this class, make reservations for your entire Board to view this live webinar and pose your questions to your choice of speaker. Ask your manager to join you! Pre-submitted questions are always encouraged. To submit your question, please click the Submit Question button below. This is our last webinar of the year and your reservation will be entered into a drawing for a gift card! Don't delay register for the 2020 finale today!

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What Would YOU Like to Read? Let Us Know For a Chance to Win! Would you like to see more articles on enforcing your rules or being a better Board Member? How about how to better interact with your Manager? If you would like an article written on a particular subject (both legal and non-legal article), enter your suggestion by clicking on the button below and you could possibly win a gift card from Clayton & McCulloh! Do not delay and submit your topic today! Our gift card winner will be announced in our next C&M update.

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And Be Entered into a Drawing for a Gift Card! Now through October 31, 2020, if you elect to follow us on our Social Media Accounts, you will be entered into our Social Media Gift Card Drawing. We feature three different Social Media accounts: Facebook - be the first to get important updates on the law, trends, seminar/webinar invitations, and other information affecting Community Association! Follow us by using this link. C&M LinkedIn - follow us on our LinkedIn page to receive legal information and updates for Community Associations, Licensed Community Association Managers, Vendors servicing Community Associations. Follow us by selecting link. Our Director of Public Relations' LinkedIn Page - She features a very popular series of informative articles on the non-legal side of Community Associations such as how to conduct an annual meeting, ways to increase owner participation, and much more. Follow her by selecting this link. So take advantage of these three great resources for Community Associations and a chance to win a Gift Card. Drawing closes October 31st. Follow us now!

About the "Green Marble" The Green Marble is a monthly digital newsletter, a complimentary service for our Association Clients and Managers. C&M also features an additional monthly digital newsletter, "C&M Update," an annual "Community Chat" (delivered to your home via USPS), and "C&M Special Editions." These publications are published by our Public Relations Department. If you have any questions, comments, or suggestions about this newsletter, please contact us at pr@clayton-mcculloh.com. You are receiving this e-mail as you fall into one of the following categories: *You are currently a client or client's manager;  * You have requested to be on our mailing list; *as a former member of BCAM and NECAM you are provided a complimentary subscription to the C&M mailing list; *By attending one of our seminars, you agreed to be part of our Confidential Mailing list. If you elect to be removed from this e-mail service, we will no longer be able to send you seminar invitations, information on changes in the law concerning Community Associations, newsletters, or any other information regarding the Community Association industry.  We sincerely hope we can continue to assist you with the challenges that face Community Associations today through this service.  When replying with a question or statement please include your name and the legal name of your Association or Management Company (no acronyms, please, unless your legal name on the Article of Incorporation lists an acronym.)

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