Powers of Attorney and Legislative Update

By Michael J. Gelfand, Esq. / Published June 2023

P

owers of Attorney: Double Trouble?

     Florida community associations receive powers of attorney with seemingly increased frequency. Can the association rely on the document? What must be done if it’s rejected? A tool that was supposed to make life easier can create a morass.

     What is a power of attorney? When presented to a Florida community association, a power of attorney is usually a document used by a unit or parcel owner authorizing another person to act for the owner. Powers of attorney are more frequently seen in relation to transactions, such as when an owner cannot appear for a closing. They are also used from time to time to authorize another to stand in, such as attending a meeting or to inspect records.

     Florida law clearly prohibits the use of a power of attorney in a few instances. One of the most frequent references is to voting, where a power of attorney cannot be used as a proxy, especially for more than 90 days after a meeting; in condominium association director elections; and as prohibited by some homeowners’ association documents.

     If a power of attorney is questioned, then a Florida community association has to comply with Florida Statutes Section 709.2120, “Rejecting Power of Attorney.” As a predicate, an association must accept or reject a power of attorney within a reasonable period of time. In addition, the rejection must be in writing, and that writing must state the reason for rejection. One exception to the written rejection notice is if the association was not otherwise required to engage with the owner under the same circumstances.

     There are penalties for wrongfully rejecting a power of attorney. Penalties can include a court award of monetary damages in favor of an owner. To help avoid claims, the statute includes certain situations that justify a rejection, at least temporarily, such as when seeking a translation or when there is information that the power of attorney was terminated.

     There are also format requirements, including how a power of attorney is signed. This last consideration was the subject of not only a lawsuit, but also an appeal. The Florida appellate court recently ruled that because a power of attorney was not properly signed, the underlying transaction, the sale of real property, was void.

     The facts in Parisi v. De Kingston, 48 Fla. L. Weekly D 557 (Fla. 3rd DCA, March 15, 2023) indicate that Quadri de Kingston, who had cancer and was living in Argentina with Parisi, executed a power of attorney in Argentina giving Piccolo power to sell her Miami property. However, no subscribing witnesses signed the power of attorney. Nonetheless, three days before Quadri de Kingston’s death, Piccolo “as attorney in fact” conveyed the property to Oxen Group, owned by Parisi, for no monetary consideration.

     After Quadri de Kingston died, her estate sued to confirm title to the Miami property. The Florida appellate court’s analysis first focused on Section 709.2105, Fla. Stat. (2015), which provided that a power of attorney must be signed by the principal and two subscribing witnesses. The court stated that because the power of attorney lacked the signature of the two required subscribing witnesses, it was not executed in compliance with Florida statute.

     The court also considered if there could be an exception to the signature requirements. There was, but limited. If the power of attorney had been signed in another state, the court explained that it could have been validated if it had complied with that state’s law. However, this exception does not apply to powers of attorney executed in another country!

     Long story short, the action taken by the holder of the power of attorney signing a deed was void.

     The important lesson of the decision is to confirm that when faced with a power of attorney, the statutory requirements are followed, including witnesses signing at the time of execution. Reference to the statute reinforces an association’s duty to handle the documentation with timely due care.

Legislative Update

     “No man’s life, liberty, or property is safe when the legislature is in session.”

     Editor’s Note: If you are a client of Gelfand & Arpe, you may read the entire legislative update in the April 2023 Memorandum to Clients at gelfandarpe.com/resources/memorandum-to-clients/.

     To whomever the aforementioned quote is properly attributed, this year’s Florida legislative session certainly seemed to live up to the quote. We awaited with bated breath for Florida community association-related proposals to make their way through committees as legislators look over their shoulders and then forward to the 2024 elections.

     This legislative update was provided at the midpoint of the session at the beginning of April, but as you hold the June issue in your hands, the session has been finished for a month. At the midpoint legislators and the governor are jockeying back and forth, trading and exchanging, and most bills are not finalized until the last few days of the session. However, there is one notable exception, as explained below, of a bill now a law.

     Tort “Reform.” The so-called “Tort Reform Act,” HB837, was signed swiftly into law by the governor as Florida Chapter Laws 2023-15 and is immediately effective. Mostly overlooked by communities, it likely will be of significance.

     This Act rescinds recovery of attorney’s fees when insurers deny residential and commercial property policy claims. The impact—If an association’s insurer denies a claim and the association prevails in litigation, the practical impact is that the expense of reconstruction will not be fully funded.

     New protections from claims come with a significant catch, requiring associations to have a “crime prevention through environmental design assessment” that is no more than three years old and   to be in “substantial compliance” with the assessment by January 1, 2025. The assessment must be performed by a law enforcement agency or a “Florida Crime Prevention Through Environmental Design Practitioner” designated by the Florida Crime Prevention Training Institute of the State of Florida Department of Legal Affairs.

     Benefiting from the Act’s new liability protections in §768.0706, which includes townhome and condominium projects, will carry an upfront expense and further planning. For example, a condominium association apparently must have the following:

1. A security camera system at points of entry and exit which records, and maintains as retrievable for at least 30 days, video footage to assist in offender identification and apprehension.
2. A lighted parking lot illuminated at an intensity of at least an average of  1.8 foot-candles per square foot at 18 inches above the surface from dusk until dawn or controlled by photocell or any similar electronic device that provides light from dusk until dawn.
3. Lighting in walkways, laundry rooms, common areas, and porches. Such lighting must be illuminated from dusk until dawn or controlled by photocell or any similar electronic device that provides light from dusk until dawn.
4. At least a one-inch deadbolt in each dwelling unit door.
5. A locking device on each window, each exterior sliding door, and any other doors not used for community purposes.
6. Locked gates with key or fob access along pool fence areas.
7. A peephole or door viewer on each dwelling unit door that does not include a window or that does not have a window next to the door.

     Obviously, some of these requirements will be beyond an association’s ability, at least in the short term, as they involve changes to the interior of a unit or parcel!

     In addition, the liability protections require that by January 1, 2025, the condominium association provide “proper crime deterrence and safety training” to its current employees. After that date, the association must provide such training to an employee within 60 days after the employee’s hire date. Questions remain such as how this impacts Florida associations with management-hired personnel.

     Narrowing claim periods, negligence lawsuits must now be filed within two as opposed to four years §95.11(4). A claim involving a service member must also be brought within two years §95.11(12).

Michael J. Gelfand, Esq.

Senior Partner, Gelfand & Arpe, P.A.

     Michael J. Gelfand, Esq., the senior partner of Gelfand & Arpe, P.A., emphasizes a community association law practice, counseling associations and owners how to set legitimate goals and effectively achieve those goals. Gelfand is a dual Florida Bar board-certified lawyer in condominium and planned development law and in real estate law, a certified circuit and county civil court mediator, a homeowners’ association mediator, an arbitrator, and parliamentarian. He is a past chair of the Real Property Division of the Florida Bar’s Real Property, Probate & Trust Law Section, and a Fellow of the American College of Real Estate Lawyers. Contact him at ga@gelfandarpe.com or 561-655-6224.