A post occupancy agreement is used infrequently in Florida but it does come up from time to time. Note that a residential lease DOES survive a sale so this is only applicable when the property is not encumbered by a residential lease but rather it is the Owner who wants to remain in possession AFTER the sale. Most of the time the Buyer wants the Seller out of the Property at Closing. While this certainly makes it easier for all those involved there are occasions where it is beneficial to the Seller, and perhaps even the Buyer, for the Seller to occupy the Property after the sale is closed. The standard FAR and FAR BAR amendment to the base Contract basically lays out: Who is going to pay for the lawyer to draft the post occupancy agreement. And, when one must be approved by both parties. It’s an agreement to enter into an agreement within a certain time line…

HOWEVER, If you are a Realtor and a cooperating member of the South Broward Board of Realtors then this document will be in your Form Simplicity program and, although a pretty basic Post Occupancy, I am told that IF it is then it MAY be used…

A few things to keep in mind in a post occupancy are:

• The Buyer is (assuming it is an As-Is Contract) accepting the Property in the As-Is condition at Closing. How can it be inspected (walk through) if the Seller has not vacated the Property?
• The Seller (now the occupant) must agree to maintain the property in the condition it was received in at Closing, but what exactly is that?
• Does the association allow leases? If they only allow say one a year does this count as that single lease? What about if they do not allow leases at all in say the first year or even two, will they allow this?
• Does the Lender for the Buyer allow the Buyer to NOT occupy the Property right after Closing? If the Buyer is getting a loan based upon the Property being their primary residence then the loan/mortgage covenants will require that they occupy the property as such within (and this may vary) 60 days of Closing. Even if not their primary residence then will throw a flag as an investment property instead of a second home?
• Who will insure the Property? The Seller can no longer do this as one can NOT insure what one does not own. They can get renters insurance but the property must be insured by the new owner (Buyer).
• Should the Seller (now the occupant) pay rent? how about a security deposit for any damage? If so, who holds onto that money?

STUART, Fla. – Jan. 8, 2019 – Question: Our HOA board called a private board meeting for ‘Personnel Issues.’ The meeting was held to discuss an email a director sent by mistake to the general manager. The email had some satirical comments about a board member’s decision.

The board voted to ask the director to resign for ethics reasons, and if they did not resign to remove them from their officer position. Is this a meeting that can be legally closed?

They also had private board meetings which were called to discuss a vendor contract but had it without an attorney present. The way I read the Sunshine laws that is also not a legal meeting. When I asked the board president about the meetings, he said their attorney said they were legal because they were contract negotiations. Your opinion? – R.L., Port St. Lucie

Answer: Thank you for your questions. The law applicable the Homeowners Associations is Section 720.303, Florida Statutes which provides that:

“Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors.” The law for condominiums is identical.

A meeting of the board to discuss the actions or communications of a director or officer as you have described is not a personnel matter in my opinion. An officer or director of the association is not the association’s “personnel.”

If the meeting was about comments made about the general manager, then it could be considered a personnel matter, but that would mean it involved something about the general manager who is the association’s employee, i.e. personnel. You indicated the purpose of the meeting was to discuss comments made to the GM about the board – not about the GM. This does not qualify in my opinion as a personnel matter that would allow the meeting to be closed to members.

Meetings to discuss negotiations about the vendor contract when the association’s legal counsel was not present are also not meetings that can be closed to the members. Even if the association attorney was present at the meeting, it likely should not have been closed because the purpose of the meeting was not to discuss “proposed or pending litigation” as required by the law below.

Boards often want to hold closed meetings to discuss matters that they otherwise do not want to publicize, sometimes for good reason such as negotiation of contract terms when there are several service bidders, but neither of the two exceptions apply for this purpose.

Question: Can the association require a $25 processing fee for approving rentals? – C.G., Palm City

Answer: Condominium and cooperative associations can only charge a fee in connection with a rental application if 1) The governing documents require the Association to approve rentals or leases and 2) The governing documents expressly provide that a fee can be charged.

Further, if the fee is authorized, the law provides that it cannot be greater than $100 per applicant with each adult deemed to be a separate applicant. However, spouses are deemed to be a single applicant. The HOA law does not address these issues, but in my opinion, the authority to charge a rental application fee must be found in the governing documents.

Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. The information provided herein is for informational purposes only and should not be construed as legal advice.

The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC., respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

© 2019 Journal Media Group, Richard D. DeBoest

ORLANDO, Fla. – Dec. 4, 2018 – The National Flood Insurance Program (NFIP) generally has bipartisan support, and most lawmakers don’t want to see the program completely shut down. As a result, Congress usually extends the program when a deadline looms so they have more time to write comprehensive legislation to deal with NFIP’s current problems.

However, this Friday may be the exception, and the program could be shut down for days or weeks. Congress must pass some long-term funding bills, and President Trump has threatened to shut down the government if those bills don’t include funding for one of his big campaign promises – a border wall.

There are a lot “ifs,” but if the NFIP extension is added as amendment to a bill that doesn’t immediately pass, program funding could be cut until government operations get back on track.

The funding bill deadline was also scheduled for Friday, though that has been pushed back to Dec. 21 in deference to the death of former President George H. Bush. However, the flood bill extension deadline is still this Friday, and Congress has not yet made it clear how it will act.

NFIP hiatus and its impact on homebuyers

If a buyer needs a mortgage for a home located in a flood zone, it’s very possible the lender won’t release funds in time to close if there’s no NFIP policy in place. While mortgage banks often follow different rules, most won’t lend money unless they know the owner has insurance to cover damage from a flood.

One option in Florida is the growing availability of private flood insurance policies – ones administered and offered by private firms. However, many lenders don’t allow buyers to qualify with any flood policy outside the NFIP, depending on how a property is zoned for flooding.

“Most carriers do not recognize other policies as equal to NFIP for any flood zone higher than an X zone,” says Maria S. Wells, broker/owner of Lifestyle Realty Group in Stuart, 2017 Florida Realtors® president and 2019 Region 5 VP for the National Association of Realtors®. “And a (flood insurance) lapse would still have devastating effects for closings.”

While more Florida insurance companies are starting to offer private flood insurance policies – ones that don’t rely on the federal government to keep extending the NFIP – it probably won’t help new homebuyers.

Wells says private policy issues need to be addressed in any comprehensive update of the NFIP. If a homeowner cancels NFIP coverage and goes with a private insurer, for example, what happens if that private insurer goes out of business or greatly increases the cost of coverage? Will the homeowner be able to return to NFIP for coverage?

“Until Congress can pass a responsible bill to make the NFIP solvent, deal with mitigation issues and level the playing field with rates, we will continue to have a broken system that keeps getting kicked down the road leaving homeowners and their communities in peril when Mother Nature decides to pay a visit,” says Wells.

Homebuyer options if NFIP expires before closing

• Buyers may be able to secure NFIP coverage before closing if they apply and receive confirmation before the program shuts down.
• Buyers may “assume” the current policy owned by the seller under certain conditions. For this to work, the seller must have coverage and be willing to transfer it. Check GR 15 in a PDF doc posted online at FEMA’s website.
• Secondary lenders that purchase mortgages have their own guidelines on how to handle a flood insurance lapse. A lender may, for example, create a legal way for buyers to put money in escrow and sign docs so they can get NFIP coverage as soon after closing as possible. However, this isn’t necessarily common.
• Should flood insurance expire, FHA, Fannie Mae, Freddie Mac and VA will probably release guidelines with more information.

© 2018 Florida Realtors®