February 26, 2025 • 44 mins
Have you ever wondered about the where, why, what and when questions that developers ask themselves before deciding on their new construction projects? Then this episode of Take It To The Board, is for you. Join us as host Donna DiMaggio Berger sits down with Jennifer Bales Drake, a key figure in Becker’s real estate practice, to break down the opportunities and obstacles developers face today and how those issues ultimately impact YOUR real estate purchasing options.
Very often, purchasers lament certain operational issues in their communities without fully understanding the developer documents which created the complex infrastructure under which they live. If you can get inside a developer's mindset will it help you make better purchase decisions? Donna and Jennifer's conversation covers these issues as well the future of real estate, with trends like micro-units, mixed-use communities, and affordable housing taking center stage. They also tackle the Structural Integrity Reserve Study and how evolving regulations impact developers and homeowners alike.
And for a unique twist—Jennifer shares her passion for the arts as well as for bourbon and her role in the Bourbon Women's Association of Louisville, celebrating the contributions of women in the bourbon industry.
Don’t miss this engaging episode packed with industry insights—plus a little bourbon wisdom to top it off!
Conversation Highlights Include:
- The biggest challenges developers face in today’s market
- Trends in mixed-use and innovative development projects
- Environmental factors influencing maintenance obligations
- Changes in building safety and compliance standards, following the Surfside tragedy
- How developers are integrating resilience and mitigation measures into projects, given Florida’s unique vulnerability to hurricanes and flooding
- Are developers rethinking construction along the coastline?
- Current state of Florida’s condo market from a developer’s perspective
- How are developers finding ways to address the middle-market condo buyer?
- How Public-Private Partnership projects are shaping real estate development in Florida
- Bourbon BONUS: Which bourbon brand would Jennifer recommend you bring along if you were stranded on a desert island!
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Hi everyone, I'm attorney Donna DiMaggio-Berger,
and this is Take it to the Boardwhere we speak condo and HOA.
Today's guest brings animportant perspective to our
podcast, that of developers,counsel.
With construction booming inmany parts of the US, and
particularly in Florida, wherewe are situated, our
conversation is an important one.
(00:22):
My partner, Jennifer Drake, hasbeen a key player in shaping
Becker's real estate departmentand has worked extensively with
developers over the years.
Jennifer was recognized as aBest Lawyer in America for Real
Estate Law.
In their 2023, 2024, and 2025editions, the Greater Fort
Lauderdale Alliance Foundationnamed Jennifer as a 2021
(00:42):
Leadership Award recipient forher outstanding community
leadership.
Jennifer has also been named tothe Martindale-Hubbell Bar
Register of Preeminent WomenLawyers in Legal Ability and
Ethical Standards, as well asbeing AV rated by
Martindale-Hubbell.
She's currently the Vice Chairof the Greater Fort Lauderdale
Alliance and is the incomingchair for next year.
Jennifer is also a formerpresident of Leadership Broward.
(01:05):
Jennifer also serves on theboard of directors of the
Business for the Arts Browardand is the chair of the Public
Arts Committee, which isspearheading the Lead with Love
Art Murals Project incollaboration with the Community
Foundation.
They will have nine love muralspainted by New York artist Say
Adams and placed in variouscities throughout Broward County
.
Additionally, their committeeis looking at potentially being
(01:32):
able to have 11 to 14 outdoormural projects in the pipeline
for 2025.
They're working hard to assistlocal artists and also bring art
to the citizens of BrowardCounty.
Well, since I am a citizen ofBroward County.
I am looking forward to seeingall that.
In this episode, we'll explorehow Jennifer helps developers
navigate Florida's unique realestate challenges, and we'll
also dive into trends that areshaping today's condominium and
(01:53):
HOA market.
Make sure you listen to theentire episode, because at the
end we're going to talk a littlebit about bourbon.
So, whether you're here for thereal estate insights or the
bourbon banter, this episodepromises a smooth finish.
So just at the outset, Jen,could you walk us through your
role as developer counsel in theearly stages of a new project?
Sure.
Speaker 2 (02:13):
So when a developer wants to develop a condominium
project, an HOA project, land,community development, that type
of thing, I usually get anemail.
Community development, thattype of thing I usually get an
email.
I usually get a call.
In which case I then set up ameeting, because what I need to
know is what are they planning?
What type of projects is itgoing to be?
(02:39):
Is it going to be a mix ofcommercial and residential, or
only residential?
Is it condo, is it townhomes?
Is it single family homes?
What's their vision?
And then I set up a meetingwith them because it's very
important to know where theywant to go, what they want to
achieve and how they want toachieve it, because that
determines what documents I use.
(03:00):
If it's going to be a largeproject with more than one
condominium building, I have amaster association.
Sometimes, if it's a large HOAwith many, many homes, we have
some associations.
We try to stay to be veryhonest.
If it's smaller developments,we try to stay away from the
(03:21):
Condo Act.
If we can get into a townhomeHOA, a lot of problems with that
is that the townhome has to besubdivided.
So if your town or municipalitywill not let you subdivide that
property, then we have to usecondo because condominiums are a
subdivision of property withouthaving to plat.
Speaker 1 (03:45):
I know that's getting technical, but that's very
important because it's gettingreal technical, real quick, and
that just shows how complicatedit is.
How quickly do you talk aboutbudget, jen, when you get that
first call or email and I'm notjust talking about the legal
budget of what they're going topay you to help them realize the
development Overall how quicklydo you get into a budget
(04:06):
conversation?
Speaker 2 (04:07):
From an association point of view, that is totally
on the developer.
My initial conversations onbudget is literally legal,
depending on what they're goingto do, how they're going to do
it.
I send out a big proposal witha lot of information.
And what's fun about mypractice is I've run the gamut
(04:28):
from strictly commercial.
I've got condominiums that arehuge, expensive condominiums
just for fancy cards.
I've got plenty of residential.
I've got combined residential,commercial, so you name it.
I also do vertical subdivisions, just so you know.
But the budget, because we'renot accountants, I give them the
(04:53):
structure, I tell them legallywhat's required in the budget,
because under 718, you have tohave set line items even if they
don't apply.
And that's one of the hardestthings to get developers to do
right off the bat.
But it is totally up to them.
I will tell you a developer, nomatter whether it's high end or
(05:15):
lower end, their assessment andtheir budget are extremely
important to them, for sales areextremely important to them for
sales.
So with and I know I'm going tothrow in a concept we'll
probably talk about later withinsurance and now these
assessments, these servicerequirements, the reserves, it's
(05:40):
getting very, very expensive tolive in a condominium in the
States.
Speaker 1 (05:46):
Yeah, I mean no doubt , and that's been kind of a
running theme on the podcast.
So we need to talk aboutbudgets and how there's a
perception that the developerbudgets are somehow kept
artificially low because they'relooking to sell and then,
post-turnover, the first thingthat happens is every line item
just about increases.
Is that?
Speaker 2 (06:06):
reality, is it?
Speaker 1 (06:07):
perception.
Speaker 2 (06:08):
Well, not when I'm representing them.
Okay, Reality is.
Here's the legal advice I givemy every one of my developers.
I've done it from the beginningand I do it now.
I tell them it is very importantthat you develop a realistic
budget because if you don't, youcan be sued Bottom line.
(06:28):
So I think it's very importantthat I, when I represent a
developer, to make sure that Iprotect the developers, but also
that the developers understandthe legality and all the issues
going on in 718.
And the problem with budgets inthe last I would say 15 years
(06:52):
or so, donna, and the reason itgoes from one extreme sometimes
to a large is insurance costs.
So if we have a string of yearswhere there's a lot of
hurricanes and we've got a highrise, it's going to take at
least three years to build theiroriginal budget.
I tell them has to be realistic.
(07:13):
If they have a huge jump ininsurance and it happens the
year that they start closings,then you're going to see a high
increase.
But if they're guaranteeingthat budget which I've not had a
developer of a high-rise thatdoesn't guarantee it it stays at
that lower level.
But we go ahead and we have tocreate our annual budget that
(07:34):
shows what the costs are.
Speaker 1 (07:36):
You know I'm wondering as I'm listening to
you walk through your processand, as you said, guiding your
developer clients to come out ofthe gate with a realistic
budget.
I have, over the last two years, come across a lot of I would
call them boutique developers,smaller developers.
Some of them are doing thesevanity projects with all the
(07:57):
bells and whistles.
They are not developers thatare going to continue developing
in the state of Florida.
Again, it may be a one-off ortwo-off vanity project.
They are using, almost withoutexception, counsel that really
are not familiar with 718, notfamiliar with 720.
(08:18):
And so sometimes we see thosebudgets are way off.
Also, it makes transition,which, for our listeners, is the
process whereby the ownerseventually take control of the
association from the developer.
It's night and day.
Why do you think that'shappening?
Speaker 2 (08:34):
Because of what happened in Florida in 2008.
In 2008, you know, until then,which was the Great Recession in
case people don't remember, itwas when we had they didn't just
taper off I had 60 developersand we hit a wall because Fannie
(08:55):
Mae said we're not going toissue any mortgages for condo
units in Florida.
Then that went with all whetherit was Fannie Mae loans or
larger loans and what I'm goingto call the real experienced
developers that you saw, thatdid the same projects over and
over and we didn't have ahousing shortage then and
(09:18):
everything wasn't only high rise.
Those were the good old days.
We have a whole different groupof people coming in and during
that time, because it was sohard to get money, it was so
hard to even build a condo.
You have a lot of what I'mgoing to call foreign developers
that came up from Latin Americathat developed things totally
(09:40):
different.
But we also have a ton of NewYork developers totally
different, but we also have aton of New York developers.
And I want to be very carefulhere because I'm not.
I just know how I practice lawand I don't want to get in on
how other people do.
But I think what happens is isthey come in and they use these
firms that they've used fortheir equity businesses, their
(10:02):
commercial you know contracts.
They're corporate contracts and, as you know, lawyers, when
you're asked if you can dosomething, you say, sure, I can
do that, because, donna, youknow, think about it.
You can get a whole filing fromthe division.
You can go online and get these.
It's easy to get thedocumentation.
Speaker 1 (10:25):
Kind of mimic what somebody else has built.
Speaker 2 (10:27):
Yes, but here's the fun and one of the benefits that
I have with being a Beckerattorney.
For years and years, when Ifirst came to Becker, I was a
developer attorney.
Becker was known for suingdevelopers and I remember a lot
of my colleagues were going ohhow would you do that, why would
(10:48):
you go there?
I said I'm going to use it tomy benefit.
And I used it and I still useit to my benefit, because I know
718 really, really well.
I also know what happens froman association point of view and
I've been able to use myassociation attorney practice
group as a sounding board.
(11:11):
How would you attack?
Well, especially in litigation,how would you attack this
contract?
What would you do with thisprovision?
And because my documents haveevolved and I know some people
think there's a lot of legalesein it, but my documents, as have
most documents people likeGreenberg, you know that people
that attorneys that really knowthis our documents have evolved
(11:35):
because of the lawsuits thathave occurred, the arbitrary you
know the arbitration cases thathave come down.
We've learned from whathappened.
Speaker 1 (11:45):
Legislative changes over the last couple decades,
which have been significant.
Speaker 2 (11:49):
Yeah, lately they've been huge In the town area too.
They're starting to regulatetownhomes extensively.
But we've learned.
But that's also made our condodocs get really big.
So but I mean, you know,anywhere from mold issues
because that's South Florida tonoise, to if I'm going to have a
(12:11):
restaurant in my condo project,I've got to make sure that I
put a disclaimer about smells.
You know it's so anyway, that's, that's that story.
Speaker 1 (12:21):
When we're talking about an experienced counsel,
maybe not.
I mean, they could be veryexperienced.
As you said, it could be yourprivate equity attorney, you
know law firm or attorney.
What about inexperienceddevelopers?
So I'm wondering again howeducated or sophisticated the
consumer?
Is when they see one of thesebuildings and it's beautiful and
bells and whistles, but it's abrand new developer to the
(12:44):
market and it's probably, asagain maybe a one-off project.
Should those potentialpurchasers be concerned about
who the developer?
Speaker 2 (12:53):
is.
I think so.
I mean, I truly think so.
So I represented Ugo Colombofor years and years on his very
first project, bristol Tower,and that's when he was doing a
lot of different projects andone of the classic things about
that company as a developer isthey knew they were going to do
(13:17):
additional projects, additionalprojects on Brickell, additional
projects in South Florida andit was very important to him as
the owner of the company and itran through the company that we
want to do a product that ourbuyers want to go somewhere else
and buy again.
They were always treated and Ilawyered from the position that
(13:41):
they wanted to do what was again.
We protected them but do whatwas best for their end buyers.
And it was a formula thatworked because people knew that
if they got a unit in thatbuilding, it was very well built
.
What happened after the crash ofthe 08, and then we went
through the whole greatrecession and then condos
(14:02):
started coming back and I wastalking about New York.
So all these it got to be arace of what fancy, really loved
architect that's built somereally expensive unit in our
development in New York.
Could they get to come downhere and design their project,
because that's what the sellingpoint was, that's what everybody
(14:25):
flocked to.
I had clients in New York thatwould have me review the
documents because they knew Iwas a developer attorney,
because they could get a unitwith ABC Architect for half the
price of what they were payingin New York, even though they
still had the New York unit.
So that what you've seen withthat type of development is
(14:48):
where not normal condodevelopers saw a real opening
and came down here and reallyand they took it.
Speaker 1 (14:57):
Yeah, so let's let's get back to the project.
You get a call.
You're working on that.
You're working on the documents.
What are the potentiallandmines?
That can derail, a newconstruction project.
Speaker 2 (15:10):
Lack of experience of the developer Not as much now.
There used to be more of alending issue.
The money was tighter, withinterest rates having come down
some for a while.
The high interest rates, thehigh cost of construction is
still difficult to get around.
Interest rates have come down.
(15:30):
Now.
If you're a really gooddeveloper you can get a decent
loan and all of the lenderslearned to use, or have the
developer use, their depositsprior to really the loan kicking
in.
But you can still have what I'mgoing to call.
By the time they see me,they've already gone through all
(15:51):
their land use issues.
They've gone through anyvariances they need to do.
Those pitfalls have alreadybeen taken care of.
So now ours are more.
If they run into a permittingissue, you know as they go
through.
You know as they go through.
(16:13):
But it's gotten in the last fewyears.
We don't have that manyproblems again on probably
actually getting the projectbuilt.
It's getting it to the pointwhere construction starts.
Once construction starts it'susually pretty good sailing.
The other thing is is the youknow getting the contracts.
As these laws are starting tochange, I foresee that we're
(16:36):
going to have fewer and fewernon-ultra rich people being able
to afford living incondominiums in Florida that is
again a kind of a theme that'srun throughout the last couple
seasons on the podcast.
Speaker 1 (16:54):
Um, you know, decades ago 50s, 60s people, this was
affordable to live in a, in acoastal condominium.
They saw it as turnkey.
They didn't, you know.
They came down their littleslice of paradise that they
could afford.
Not really the case now.
I did want to ask you, um,about hiccups and hiccups when
it comes to the prospectus, andhow closely does the state
(17:15):
oversee what you submit?
Speaker 2 (17:17):
Oh, the state oversees it.
I'll be very careful here.
There used to be a high levelof expertise at the state.
A gentleman by the name of RickCrowe was wonderful.
He understood the statutereally well.
He understood the unit buyerside and the developer side.
He's the kind of examiner thatyou could call up and explain
(17:42):
some of the things you weredoing and how the statute really
does apply.
I think the way it's gotten nowwith COVID and just the whole
change of administrations.
The division has a checklist ofitems They've got and they've
provided it now to all of us asattorneys that do this work and
(18:06):
they have listed what sectionsof the statute.
So the people that now reviewour documents.
They review everything with afine-tooth comb but it's very
rote and I have found in quite afew occasions that the examiner
does not necessarily understandIf it doesn't read just like
(18:26):
the statute.
I'm trying.
Speaker 1 (18:29):
That's why I was asking you, because you have
indicated that over the yearsyour documents have evolved as
they need to when you're takinginto account the overall
statutory framework, the caselaw framework.
And we all know, because we seeit on the legislative end, when
a bill proposal goes intoSenate drafting and it comes out
(18:49):
and it's like it was drafted ina vacuum.
Almost it's the same type ofthing.
So that's why I kind of askedyou.
Speaker 2 (18:56):
Let me tell you why.
It's the same type of thingBack in the day of people like
Rick Crow, we used to be able totake I'm going to back up here
for everybody that isn'tfamiliar with the making of the
sausage and legislation and allof that.
Statutes are not always verywell written and they're not
(19:16):
always clear, especially notonly for lawyers, but they're
not always clear for the publicright, the people of mind.
So we used to be able to takethe statute and make what I'm
going to call plain Englishparagraphs.
That meant the same thingbecause of the way our documents
(19:37):
are reviewed today by thedivision.
If it doesn't read like thestatute, we get a deficiency.
Speaker 1 (19:44):
That is such an important point because you know
you're at the front end of it.
I'm at the I wouldn't say thevery back end, because the very
back end is termination, but I'mright at the beginning.
The next, you know, turn in thepath which is transition, and
then we start digging into thedocuments and the policies and
the protocols and I always getthis question what is this?
(20:06):
Why are these documents sofilled with legalese?
And you just explained itbecause it has to track the
statute, and the statute, as weknow look, we've got people
listening all over, jennifer,not just in Florida, but
Florida's condominium act is, inmy opinion, the most bloated,
incomprehensible sharedownership statute in the country
(20:26):
, and that's what we're dealingwith it is.
Speaker 2 (20:30):
And if you went back and looked at a set of documents
I did 20 years ago, five yearsago, compared to what it is
today, you would totally go oh,I get what she's saying.
So you know, you know as wellas I do.
Some of that language isextremely hard to interpret.
(20:50):
I mean, it just is, but that'swhat we have to put in because
we have to get our documentsapproved, and that's what we do.
Speaker 1 (20:57):
It's like the Community Association Lawyers
Relief Act, because, on the onehand, they don't necessarily
like us all that much, but itvirtually guarantees that our
phones are going to ring, ouremails are going to.
You know, come to our inboxes,because, as you said, it is not
a model of clarity.
Let's just say that I did wantto talk to you about developers,
(21:20):
and this is not necessarily inyour area because you're
creating the documents, but howimportant is it for developers
and how often do they have toseek out the cooperation of
neighboring property ownersBecause they're developing now
in areas right next door?
It's very dense.
What do you think?
Speaker 2 (21:38):
It used to be an issue back in the day, people,
when South Florida wasn't sofull of high rises.
You know, from the time westarted the crane count, it
never really went down.
I don't know if you'relistening.
Public understands or remembersthe crane count, but it still
(21:59):
goes on.
There were so many condominiumsbeing developed in South
Florida.
There was a whole organizationthat would count the cranes and
it used to only be Miami-Dade,and then it moved up to Broward
and now it's up in and and PalmBeach County too.
Um, so I think that we as asociety have become used to high
(22:23):
rises.
I mean, I think, some of them.
You have to wonder what themunicipalities and I know I'm
representing developers but arethinking.
I know here in Broward we'vegot some high rises that are so
close that the biggestcomplaints we get are the debris
of the construction of thebuilding, that is literally
(22:44):
falling on existing condominiumsbalconies.
I mean, that's our bigneighboring issue and, to be
honest, once you've got thatright to build, it's not like
they're stopping yourconstruction.
Speaker 1 (22:59):
So, jennifer, you said a while ago you mentioned
car condominiums.
I got to know what that is.
I have to know what that is acondominium exclusively for cars
and also want to know whatother trends you're seeing out
there right now.
Speaker 2 (23:12):
So I have a developer who has a great concept and
he's got two projects in PalmBeach and he is going to expand
it and it's Hangar Alpha, hangarBravo and what they literally
do.
You know how you would do acondo hotel, where the skin of
the building is sharedfacilities and the air is the
(23:35):
condo association.
We've built it that way so thatthe looks are the same, the
outside of the building ismaintained and it's for you know
, there are a lot of car clubsand car enthusiasts down here,
especially now that we have theF1 race in Miami, and so it is
literally condominiums andthey're really nice and the
(23:59):
project there's a club and aclubhouse and all these car
enthusiasts they buy their units, they can work on the cars
there.
Some of them have lifts andhave three or four cars and they
do a loft and have, you know, asofa and stereo and all of that
they get together.
But you can't live there, youknow it's.
Speaker 1 (24:18):
What if you can't?
Do you have prohibitionsagainst people sleeping
overnight or just for aconsecutive number of nights?
Something like that.
Speaker 2 (24:26):
Yeah, and that's usually because of the uh
permitting and the ordinances.
What are board meetings like?
Do they drive their cars?
Everybody's happy, you know,but you don't live there.
It's their cars.
They have a good time.
It's a great concept I guess sointeresting.
Speaker 1 (24:43):
Oh so what else?
What other construction trendsspecifically?
I read about micro.
Have you done any projects withthese teeny, tiny units?
Speaker 2 (24:53):
I had several developers that looked into that
and decided against it.
There are several that arebeing developed.
I think a lot of the developersthat were going to do that as
condos switched to makingapartments making apartments.
(25:16):
But now because of the cost,see we have it's not as high as
New York, but our living costsare still like Broward County
was number one for the last fewyears just the whole cost of
living.
Micro units are now making acomeback, but they're in day
right now because that's kind ofthat the trends start down
there it's it's interestingtotally different counties.
The other thing that'ssurprising that I'm finding is
(25:40):
that what I'm going to call thenon-national kind of the local
developers, the family owneddevelopers, those types of
things they're starting to lookat units not going over three
stories.
Now, that doesn't avoid SERS,but what it does is you don't
have the construction costs, youdon't have all the insurance
(26:01):
liability, you don't have theassessment reserves that you're
going to need the maintenance toreserve for the building and
it's going to be a push-pullbecause we're running out of
land here.
So I'm finding I'm seeing thatmore on the West Coast, and then
Not to which but you're goingto have less density.
(26:21):
You're going to have less that'sthe whole point You're going to
.
You'll need more land and lessdensity.
Right, you'll be more spreadout.
Yeah, the whole reason we'vegone high rise crazy is because
land's so expensive and thedensity you can get, so also
lose the view, unless you,unless they're clustered around
water right yeah, but.
But so the thing about that isthe.
(26:44):
The buyer that you're seekingisn't looking so much for the
view as reasonable housing, andin Florida reasonable housing is
$8,000, $9,000.
Speaker 1 (27:01):
Yeah, that's a whole other podcast episode on
affordable housing.
Speaker 2 (27:06):
I have a passion for that and I speak all over the
country on attainable and I'vedone a website for one of my
organizations, ai, aiunattainable housing.
It's extremely difficult, youcan't get.
It's hard to get the cost ofpencil out and be affordable.
But even those in Florida arerunning $465,000.
Speaker 1 (27:32):
So not so attainable for most people, especially when
we've got all these fancyrestaurants moving down here,
large corporations, and youwonder where are all the workers
going to be living.
Speaker 2 (27:47):
Even the rentals are super expensive.
Speaker 1 (27:51):
As you said, I thought I read a year or so ago
that the Miami rental market wasone of the most expensive in
the entire country in terms ofwhat people's percentage of
their paycheck goes towardshousing.
Broward was number one.
Broward was number one.
Speaker 2 (28:05):
It's a very hospitality economy, so wages
stay low.
Even what I'm going to callwhite collar jobs are lower
because of our baseline andyou've got apartments running
what they cost in, like JerseyCity and those places.
I mean, it's expensive.
Jen, have you done a lot ofmixed use communities?
(28:26):
Oh yeah, that's mostly whatI've done and and that's where
we've, I've got a huge projectright now Hallandale, oasis.
Oasis Hallandale is actuallyit's it's two commercial
condominiums, it's one piece ofproperty, two commercial
condominiums.
It's got a dog park, it's gotretail, it's got shops and then
(28:51):
back in the back it's two highrise towers of residential 250
each.
It's separate.
So I had to do a master garageassociation because they're
(29:15):
sharing it and their buildingssit on it but they're not part
of it.
It was quite interesting, quiteinteresting.
Speaker 1 (29:22):
So that was complicated.
And speaking of which, so inthese a lot of the mixed use
communities, again, buyers willlook at you know the view, their
unit.
They'll oh, how cool, I can goto the Whole Foods, I can go to
the there's a dry cleaner hereand everything.
And then later they come to usand say the actual operations
(29:43):
are very complicated in terms ofthe board, their
sub-association, a masterassociation.
In terms of the board, theirsub-association, a master
association.
I think that some of this isjust inherently complicated
because you've got such anambitious development scheme.
Speaker 2 (29:57):
Well, no, it's because of 718.
So the reason that we divideand do a lot of these vertical
subdivisions in 718, we have amixed use statute that says
commercial space has to pay thesame type of assessment,
percentage-wise, as unit owners.
Well, when you've got 10,000,12,000 feet and you're paying
(30:22):
the same, it doesn't work forgetting tenants in there.
It doesn't work for gettingtenants in there, ok.
So.
And also, businesses don't wantto be controlled by residential
condominium associations, whichis what the mixed use makes you
do.
(30:42):
If you don't have equal I meanthey have equal voting.
So we used to always, we usedto always have weighted voting
for commercial units, where theycontrolled their own destiny,
so to speak, even though therewere more units.
Well, when they passed that law, we started playing with the
okay, we'll make a cube of airfor the commercial and they'll
make that a separate lot.
Then we'll do a condo lot, anda lot of that was with the
(31:06):
shared facilities.
I've done vertical subdivisionswhere we had a residential
condominium, a whole, two floorsof retail, a hotel and an
office building and instead anda garage and a garage, a garage,
(31:32):
and what I ended up doing is Icreated a declaration of
covenants and restrictions andan association, like a master
association, to govern all thoselots.
So we had a hotel lot, we had aresidential condo lot so that
the residential condo was itsown being.
And I always, if I'm doing thattype of mixed development, it
(31:53):
is very complicated from adrafting point of view, but if
you separate it that way it'smore governable and I always
make sure the association hastheir own lobby, that they're
lollipop and touch the ground,you know.
But it's very important for anassociation to have control of
all of that, because they alsodon't want to be whiplashed by
(32:18):
the commercial part.
Speaker 1 (32:19):
A hundred percent, and that's why it's so important
.
Look, I think purchasers needto have their own council.
Even for just a very basic.
I'm buying a condo unit in justa five-story building.
But when you're talking aboutthis kind of mixed-use
development and you've got ahotel component and you've got a
restaurant and you need to diginto those documents, and I
(32:42):
don't know many purchasers whoare going to be able to do that
on their own.
So it really would behoovepeople to hire an attorney real
estate attorney to help themwalk them through their
documents, while they still havethe precision rights, and
figure out whether or not thiskind of development that they
will feel comfortable with it.
Because a lot of times we'llhear well this isn't fair and
(33:02):
we're paying to subsidize thisand there's people walking
through our lobby to get andwe've got security concerns and
everything you just touched on,and a lot of it's going to boil
down to developers counsel andhow well they drafted those
documents and how much they tookinto account the long-term
operational pain points.
Speaker 2 (33:22):
Well, yeah, and again that my benefit comes from
where I am, where I am ashareholder.
What I've seen and what I careas an attorney and a person in
drafting my documents Okay, Icould draft documents that are
totally way way developer heavyand actually if a developer
(33:46):
really wanted that, I would tryto talk them out of it.
Actually, if a developer reallywanted that, I would try to
talk them out of it.
But if they're not going to doother developments to a point,
as long as they're doing itlegally, they can.
But what I have seen is that theearly remnants of our shared
facilities hotel condos I mean,they're sexy as can be, because
you've got a spa and it's fourseasons and it looks great.
(34:08):
But then all of a sudden andpeople do not read their
documents.
And it's very clear to me, evenpeople spending 10 and $12
million on a unit do not readtheir documents, and sometimes
they're too cheap to haveattorneys do it.
So what happens is is they'veoffloaded all these shared
facilities that they're payingfor, that they don't have any
(34:31):
control over the budget.
So, yeah, it's very importantto know who your developer is
and read the documents.
Speaker 1 (34:38):
Buyer beware, Jen.
Have environmental factorsinfluenced the way you draft
these documents?
Let me give you an exampleWindow maintenance, for example.
Let me give you an exampleWindow maintenance, for example.
If I'm looking at a 12-storycondominium on the coast in
Florida, does it make sense tohave the owners maintaining
(34:59):
those windows?
Have the environmental factorsinfluenced your drafting when it
comes to maintenance and?
Speaker 2 (35:05):
repair obligations.
So I've done quite a fewhigh-rise condos that are very
glass or heavy.
Yeah, I always have theassociate.
I have the.
It's, the owner's cost,association's responsibility for
balconies and the glass, theglazing, because I may be one of
(35:28):
these owners that I care but myneighbor may not even know what
glazing is, which is for thosewho don't understand.
That's making sure your windowsare properly caught and keep
the rain out.
But my philosophy in draftingthe documents and where I put
the maintenance obligations werealways with the thought that an
(35:51):
association is going to hire aknowledgeable company because
they have certain obligations ofdue diligence and stuff, but
instead of having me with aleaky unit and the neighbor next
door, because it's going toaffect the people down below me,
it's going to.
So, yes, from that point ofview, where you put maintenance
(36:14):
obligations are very important.
And again, I said somethingabout balcony and balcony
railings.
That has always been something,especially on the coast, that
I've put on the association tomaintain, split by unit owners.
Again, because, number one, theassociation is going to take
care of a problem nine times outof 10, whereas an individual
(36:38):
unit owner you can't count on.
Speaker 1 (36:39):
This is really becoming an issue in Florida now
in the last few years becauseof the CERS or the Structural
Integrity Reserve Study, whichsays that the association has to
maintain reserves for windowsif they are responsible for the
maintenance and repair of thosewindows.
So I've had a number of clientscome and say well, we want to
amend this, to push it back, thewindow maintenance and repair
(37:01):
back onto the owners.
And I always push back againstthat saying look, you think
you're going to save in terms ofnot having to reserve for those
components.
Look, you think you're going tosave in terms of not having to
reserve for those components,You're going to lose in terms of
paying legal fees, to chasethese owners when they're not
maintaining those windows, andalso with regard to insurance
premiums.
But this is the short-termthinking we're seeing right now.
Speaker 2 (37:22):
I'm going to tell you another real important point
too, to tell your unit ownersSome of the largest damage that
I've seen has not been winddamage.
It's when we have like thehurricanes, where it's like
urban, that's just rain, rainand the rain's going sideways.
I mean millions and millions ofdollars of damage, making
(37:47):
condominiums uninhabitable, andyou know as well as I do that it
can take years to settle aninsurance claim.
So if you have windows thatyou've maintained as they are
required to be maintained,you're going to eliminate a lot
(38:07):
of damage and grief.
I could not agree more.
Speaker 1 (38:11):
We're almost wrapping up here, but I do have to ask
you because, look, you havereally built a profile in the
real estate industry over thelast few decades.
What tips do you have foryounger attorneys who are
listening as to how you did it,other than just being a really
unbelievable real estateattorney, jennifer Well?
Speaker 2 (38:30):
thank you.
You do have to be good at whatyou do.
Yes, you have to have integrity.
That's very important.
You need to be consistentlyhonorable and know the statute.
Give your clients the bestadvice, but let them make their
business decisions.
And if they make their businessdecisions, then you craft your
(38:53):
documents to protect them asbest you can.
Okay, but it's also very, very,very important to be involved
in the community.
I've been involved, like yousaid at the beginning.
I've been involved inleadership for Howard.
I was president.
I was on the board for twodifferent, six and seven year
terms.
I've been very involved.
My very first communityinvolvement was the Fort
(39:15):
Lauderdale Seafood Festival.
You get to know your community.
You get to know the people.
I've been very involved in theFort Lauderdale Alliance, which
is we are the economicdevelopment entity for Broward
County.
We're the first people thatcompanies that want to move here
see us.
Well, the more you're involved.
(39:37):
We're dealing with all theC-level executives.
I'm dealing with the who's whoof business people in Broward.
You can't just do that.
You can't just show up on thescene and become a vice chair or
chair of that kind oforganization.
You have to give back to yourcommunity.
So and then the other part ofit is I have my young attorneys.
(40:02):
They need to get involved inthe believe it or not the bar
association to get to know theattorneys and also to get to
know again.
I'm going to go back to knowingthe law very well because that
helps you to become a very goodattorney.
But you need to know both sidesbecause you can't represent the
(40:24):
developers really well if youdon't know what and care about
what the buyers and the unitowners are going to care about.
Then you have to give a balance.
So I guess that's my tip.
Those are hot takes.
Speaker 1 (40:39):
I hope everyone's listening.
So, as I promised in theintroduction, I want to talk to
you about your membership in theBourbon Women Association of
Louisville.
So how did that happen and whatis so special about bourbon?
Speaker 2 (40:54):
Well, bourbon is actually delicious, but it's
also, it also has a big place inAmerican history.
It's been around.
I mean it's funny becausebefore I think we even became a
country, especially like in theKentucky area, before it was
Kentucky and Tennessee, and downthe Tennessee River, they used
to make like bourbon and it'sgot corn and it's got rye and
(41:16):
it's got barley, and then theywould ship it down on the river
to New Orleans.
That's how Bourbon Streetbecame Bourbon Street, because
all the cask of bourbon wouldend up down on that street in
New Orleans from being made upin the South.
But I got involved with thisgroup of women because there are
a lot of women distillers andwomen what I'm going to call
(41:41):
bourbon people that are in thebourbon industry.
There's a ton of women and sothis Women's Bourbon Association
out of Louisville, that's theheart of bourbon country.
Ok, and there I mean, like Peggyknows Stevens, that is Jim
Beans, that is his granddaughter, and it's just so cool, the
(42:06):
history and the and the fun, andthey teach you all about
bourbon.
You know the notes, you knowhow to taste, you know what's
good, you know what, and thenyou just have fun.
Speaker 1 (42:16):
Will you take me to a bourbon tasting?
Speaker 2 (42:18):
I don't know you can come to my house and get in.
Speaker 1 (42:23):
Okay, you're not far from me, so let's do it.
So you've been very graciouswith your time.
Last question If you could onlytake one bourbon with you to a
desert island, or?
Let's do it, so you've beenvery gracious with your time.
Speaker 2 (42:36):
Last question If you could only take one bourbon with
you to a desert island or,let's say, a particularly long
HOA meeting.
What would it be and why?
Well, that's kind of hard.
That's like making me pick one.
I would pick Midwinter's NightDram because it's absolutely
(42:56):
delicious, but if I couldn't geta bottle of that because it's
very hard to get I would.
I love Willet Rye, I lovePeerless Rye, I love Mictors Rye
, and so you were talking aboutthe Women's Bourbon Association.
We have what's called thePeacock Club and you pay an
extra fee to be a member of thePeacock Club and they go around
(43:17):
and these ladies that have beenin the like Peggy and Susan
Reituer, and these people thathave been in the bourbon
industry for years they goaround to different distilleries
and select barrels, and theyselected this Four Roses barrel.
That is almost as good asMidwinter's Night Dram, so
(43:37):
probably grab that.
I mean I've got several.
I might sneak more than one.
Speaker 1 (43:42):
Well, there you have it, and, depending on who
listens to this episode, I thinkmaybe you'll be set next
Christmas.
So, jennifer, thanks so muchfor joining us today.
Thank you for joining us today.
Don't forget to follow and rateus on your favorite podcast
platform, or visittaketotheboardcom for more ways
to connect.
Hi everyone, I'm attorney Donna DiMaggio-Berger,
and this is Take it to the Boardwhere we speak condo and HOA.
Today's guest brings animportant perspective to our
podcast, that of developers,counsel.
With construction booming inmany parts of the US, and
particularly in Florida, wherewe are situated, our
conversation is an important one.
(00:22):
My partner, Jennifer Drake, hasbeen a key player in shaping
Becker's real estate departmentand has worked extensively with
developers over the years.
Jennifer was recognized as aBest Lawyer in America for Real
Estate Law.
In their 2023, 2024, and 2025editions, the Greater Fort
Lauderdale Alliance Foundationnamed Jennifer as a 2021
(00:42):
Leadership Award recipient forher outstanding community
leadership.
Jennifer has also been named tothe Martindale-Hubbell Bar
Register of Preeminent WomenLawyers in Legal Ability and
Ethical Standards, as well asbeing AV rated by
Martindale-Hubbell.
She's currently the Vice Chairof the Greater Fort Lauderdale
Alliance and is the incomingchair for next year.
Jennifer is also a formerpresident of Leadership Broward.
(01:05):
Jennifer also serves on theboard of directors of the
Business for the Arts Browardand is the chair of the Public
Arts Committee, which isspearheading the Lead with Love
Art Murals Project incollaboration with the Community
Foundation.
They will have nine love muralspainted by New York artist Say
Adams and placed in variouscities throughout Broward County
.
Additionally, their committeeis looking at potentially being
(01:32):
able to have 11 to 14 outdoormural projects in the pipeline
for 2025.
They're working hard to assistlocal artists and also bring art
to the citizens of BrowardCounty.
Well, since I am a citizen ofBroward County.
I am looking forward to seeingall that.
In this episode, we'll explorehow Jennifer helps developers
navigate Florida's unique realestate challenges, and we'll
also dive into trends that areshaping today's condominium and
(01:53):
HOA market.
Make sure you listen to theentire episode, because at the
end we're going to talk a littlebit about bourbon.
So, whether you're here for thereal estate insights or the
bourbon banter, this episodepromises a smooth finish.
So just at the outset, Jen,could you walk us through your
role as developer counsel in theearly stages of a new project?
Sure.
Speaker 2 (02:13):
So when a developer wants to develop a condominium
project, an HOA project, land,community development, that type
of thing, I usually get anemail.
Community development, thattype of thing I usually get an
email.
I usually get a call.
In which case I then set up ameeting, because what I need to
know is what are they planning?
What type of projects is itgoing to be?
(02:39):
Is it going to be a mix ofcommercial and residential, or
only residential?
Is it condo, is it townhomes?
Is it single family homes?
What's their vision?
And then I set up a meetingwith them because it's very
important to know where theywant to go, what they want to
achieve and how they want toachieve it, because that
determines what documents I use.
(03:00):
If it's going to be a largeproject with more than one
condominium building, I have amaster association.
Sometimes, if it's a large HOAwith many, many homes, we have
some associations.
We try to stay to be veryhonest.
If it's smaller developments,we try to stay away from the
(03:21):
Condo Act.
If we can get into a townhomeHOA, a lot of problems with that
is that the townhome has to besubdivided.
So if your town or municipalitywill not let you subdivide that
property, then we have to usecondo because condominiums are a
subdivision of property withouthaving to plat.
Speaker 1 (03:45):
I know that's getting technical, but that's very
important because it's gettingreal technical, real quick, and
that just shows how complicatedit is.
How quickly do you talk aboutbudget, jen, when you get that
first call or email and I'm notjust talking about the legal
budget of what they're going topay you to help them realize the
development Overall how quicklydo you get into a budget
(04:06):
conversation?
Speaker 2 (04:07):
From an association point of view, that is totally
on the developer.
My initial conversations onbudget is literally legal,
depending on what they're goingto do, how they're going to do
it.
I send out a big proposal witha lot of information.
And what's fun about mypractice is I've run the gamut
(04:28):
from strictly commercial.
I've got condominiums that arehuge, expensive condominiums
just for fancy cards.
I've got plenty of residential.
I've got combined residential,commercial, so you name it.
I also do vertical subdivisions, just so you know.
But the budget, because we'renot accountants, I give them the
(04:53):
structure, I tell them legallywhat's required in the budget,
because under 718, you have tohave set line items even if they
don't apply.
And that's one of the hardestthings to get developers to do
right off the bat.
But it is totally up to them.
I will tell you a developer, nomatter whether it's high end or
(05:15):
lower end, their assessment andtheir budget are extremely
important to them, for sales areextremely important to them for
sales.
So with and I know I'm going tothrow in a concept we'll
probably talk about later withinsurance and now these
assessments, these servicerequirements, the reserves, it's
(05:40):
getting very, very expensive tolive in a condominium in the
States.
Speaker 1 (05:46):
Yeah, I mean no doubt , and that's been kind of a
running theme on the podcast.
So we need to talk aboutbudgets and how there's a
perception that the developerbudgets are somehow kept
artificially low because they'relooking to sell and then,
post-turnover, the first thingthat happens is every line item
just about increases.
Is that?
Speaker 2 (06:06):
reality, is it?
Speaker 1 (06:07):
perception.
Speaker 2 (06:08):
Well, not when I'm representing them.
Okay, Reality is.
Here's the legal advice I givemy every one of my developers.
I've done it from the beginningand I do it now.
I tell them it is very importantthat you develop a realistic
budget because if you don't, youcan be sued Bottom line.
(06:28):
So I think it's very importantthat I, when I represent a
developer, to make sure that Iprotect the developers, but also
that the developers understandthe legality and all the issues
going on in 718.
And the problem with budgets inthe last I would say 15 years
(06:52):
or so, donna, and the reason itgoes from one extreme sometimes
to a large is insurance costs.
So if we have a string of yearswhere there's a lot of
hurricanes and we've got a highrise, it's going to take at
least three years to build theiroriginal budget.
I tell them has to be realistic.
(07:13):
If they have a huge jump ininsurance and it happens the
year that they start closings,then you're going to see a high
increase.
But if they're guaranteeingthat budget which I've not had a
developer of a high-rise thatdoesn't guarantee it it stays at
that lower level.
But we go ahead and we have tocreate our annual budget that
(07:34):
shows what the costs are.
Speaker 1 (07:36):
You know I'm wondering as I'm listening to
you walk through your processand, as you said, guiding your
developer clients to come out ofthe gate with a realistic
budget.
I have, over the last two years, come across a lot of I would
call them boutique developers,smaller developers.
Some of them are doing thesevanity projects with all the
(07:57):
bells and whistles.
They are not developers thatare going to continue developing
in the state of Florida.
Again, it may be a one-off ortwo-off vanity project.
They are using, almost withoutexception, counsel that really
are not familiar with 718, notfamiliar with 720.
(08:18):
And so sometimes we see thosebudgets are way off.
Also, it makes transition,which, for our listeners, is the
process whereby the ownerseventually take control of the
association from the developer.
It's night and day.
Why do you think that'shappening?
Speaker 2 (08:34):
Because of what happened in Florida in 2008.
In 2008, you know, until then,which was the Great Recession in
case people don't remember, itwas when we had they didn't just
taper off I had 60 developersand we hit a wall because Fannie
(08:55):
Mae said we're not going toissue any mortgages for condo
units in Florida.
Then that went with all whetherit was Fannie Mae loans or
larger loans and what I'm goingto call the real experienced
developers that you saw, thatdid the same projects over and
over and we didn't have ahousing shortage then and
(09:18):
everything wasn't only high rise.
Those were the good old days.
We have a whole different groupof people coming in and during
that time, because it was sohard to get money, it was so
hard to even build a condo.
You have a lot of what I'mgoing to call foreign developers
that came up from Latin Americathat developed things totally
(09:40):
different.
But we also have a ton of NewYork developers totally
different, but we also have aton of New York developers.
And I want to be very carefulhere because I'm not.
I just know how I practice lawand I don't want to get in on
how other people do.
But I think what happens is isthey come in and they use these
firms that they've used fortheir equity businesses, their
(10:02):
commercial you know contracts.
They're corporate contracts and, as you know, lawyers, when
you're asked if you can dosomething, you say, sure, I can
do that, because, donna, youknow, think about it.
You can get a whole filing fromthe division.
You can go online and get these.
It's easy to get thedocumentation.
Speaker 1 (10:25):
Kind of mimic what somebody else has built.
Speaker 2 (10:27):
Yes, but here's the fun and one of the benefits that
I have with being a Beckerattorney.
For years and years, when Ifirst came to Becker, I was a
developer attorney.
Becker was known for suingdevelopers and I remember a lot
of my colleagues were going ohhow would you do that, why would
(10:48):
you go there?
I said I'm going to use it tomy benefit.
And I used it and I still useit to my benefit, because I know
718 really, really well.
I also know what happens froman association point of view and
I've been able to use myassociation attorney practice
group as a sounding board.
(11:11):
How would you attack?
Well, especially in litigation,how would you attack this
contract?
What would you do with thisprovision?
And because my documents haveevolved and I know some people
think there's a lot of legalesein it, but my documents, as have
most documents people likeGreenberg, you know that people
that attorneys that really knowthis our documents have evolved
(11:35):
because of the lawsuits thathave occurred, the arbitrary you
know the arbitration cases thathave come down.
We've learned from whathappened.
Speaker 1 (11:45):
Legislative changes over the last couple decades,
which have been significant.
Speaker 2 (11:49):
Yeah, lately they've been huge In the town area too.
They're starting to regulatetownhomes extensively.
But we've learned.
But that's also made our condodocs get really big.
So but I mean, you know,anywhere from mold issues
because that's South Florida tonoise, to if I'm going to have a
(12:11):
restaurant in my condo project,I've got to make sure that I
put a disclaimer about smells.
You know it's so anyway, that's, that's that story.
Speaker 1 (12:21):
When we're talking about an experienced counsel,
maybe not.
I mean, they could be veryexperienced.
As you said, it could be yourprivate equity attorney, you
know law firm or attorney.
What about inexperienceddevelopers?
So I'm wondering again howeducated or sophisticated the
consumer?
Is when they see one of thesebuildings and it's beautiful and
bells and whistles, but it's abrand new developer to the
(12:44):
market and it's probably, asagain maybe a one-off project.
Should those potentialpurchasers be concerned about
who the developer?
Speaker 2 (12:53):
is.
I think so.
I mean, I truly think so.
So I represented Ugo Colombofor years and years on his very
first project, bristol Tower,and that's when he was doing a
lot of different projects andone of the classic things about
that company as a developer isthey knew they were going to do
(13:17):
additional projects, additionalprojects on Brickell, additional
projects in South Florida andit was very important to him as
the owner of the company and itran through the company that we
want to do a product that ourbuyers want to go somewhere else
and buy again.
They were always treated and Ilawyered from the position that
(13:41):
they wanted to do what was again.
We protected them but do whatwas best for their end buyers.
And it was a formula thatworked because people knew that
if they got a unit in thatbuilding, it was very well built
.
What happened after the crash ofthe 08, and then we went
through the whole greatrecession and then condos
(14:02):
started coming back and I wastalking about New York.
So all these it got to be arace of what fancy, really loved
architect that's built somereally expensive unit in our
development in New York.
Could they get to come downhere and design their project,
because that's what the sellingpoint was, that's what everybody
(14:25):
flocked to.
I had clients in New York thatwould have me review the
documents because they knew Iwas a developer attorney,
because they could get a unitwith ABC Architect for half the
price of what they were payingin New York, even though they
still had the New York unit.
So that what you've seen withthat type of development is
(14:48):
where not normal condodevelopers saw a real opening
and came down here and reallyand they took it.
Speaker 1 (14:57):
Yeah, so let's let's get back to the project.
You get a call.
You're working on that.
You're working on the documents.
What are the potentiallandmines?
That can derail, a newconstruction project.
Speaker 2 (15:10):
Lack of experience of the developer Not as much now.
There used to be more of alending issue.
The money was tighter, withinterest rates having come down
some for a while.
The high interest rates, thehigh cost of construction is
still difficult to get around.
Interest rates have come down.
(15:30):
Now.
If you're a really gooddeveloper you can get a decent
loan and all of the lenderslearned to use, or have the
developer use, their depositsprior to really the loan kicking
in.
But you can still have what I'mgoing to call.
By the time they see me,they've already gone through all
(15:51):
their land use issues.
They've gone through anyvariances they need to do.
Those pitfalls have alreadybeen taken care of.
So now ours are more.
If they run into a permittingissue, you know as they go
through.
You know as they go through.
(16:13):
But it's gotten in the last fewyears.
We don't have that manyproblems again on probably
actually getting the projectbuilt.
It's getting it to the pointwhere construction starts.
Once construction starts it'susually pretty good sailing.
The other thing is is the youknow getting the contracts.
As these laws are starting tochange, I foresee that we're
(16:36):
going to have fewer and fewernon-ultra rich people being able
to afford living incondominiums in Florida that is
again a kind of a theme that'srun throughout the last couple
seasons on the podcast.
Speaker 1 (16:54):
Um, you know, decades ago 50s, 60s people, this was
affordable to live in a, in acoastal condominium.
They saw it as turnkey.
They didn't, you know.
They came down their littleslice of paradise that they
could afford.
Not really the case now.
I did want to ask you, um,about hiccups and hiccups when
it comes to the prospectus, andhow closely does the state
(17:15):
oversee what you submit?
Speaker 2 (17:17):
Oh, the state oversees it.
I'll be very careful here.
There used to be a high levelof expertise at the state.
A gentleman by the name of RickCrowe was wonderful.
He understood the statutereally well.
He understood the unit buyerside and the developer side.
He's the kind of examiner thatyou could call up and explain
(17:42):
some of the things you weredoing and how the statute really
does apply.
I think the way it's gotten nowwith COVID and just the whole
change of administrations.
The division has a checklist ofitems They've got and they've
provided it now to all of us asattorneys that do this work and
(18:06):
they have listed what sectionsof the statute.
So the people that now reviewour documents.
They review everything with afine-tooth comb but it's very
rote and I have found in quite afew occasions that the examiner
does not necessarily understandIf it doesn't read just like
(18:26):
the statute.
I'm trying.
Speaker 1 (18:29):
That's why I was asking you, because you have
indicated that over the yearsyour documents have evolved as
they need to when you're takinginto account the overall
statutory framework, the caselaw framework.
And we all know, because we seeit on the legislative end, when
a bill proposal goes intoSenate drafting and it comes out
(18:49):
and it's like it was drafted ina vacuum.
Almost it's the same type ofthing.
So that's why I kind of askedyou.
Speaker 2 (18:56):
Let me tell you why.
It's the same type of thingBack in the day of people like
Rick Crow, we used to be able totake I'm going to back up here
for everybody that isn'tfamiliar with the making of the
sausage and legislation and allof that.
Statutes are not always verywell written and they're not
(19:16):
always clear, especially notonly for lawyers, but they're
not always clear for the publicright, the people of mind.
So we used to be able to takethe statute and make what I'm
going to call plain Englishparagraphs.
That meant the same thingbecause of the way our documents
(19:37):
are reviewed today by thedivision.
If it doesn't read like thestatute, we get a deficiency.
Speaker 1 (19:44):
That is such an important point because you know
you're at the front end of it.
I'm at the I wouldn't say thevery back end, because the very
back end is termination, but I'mright at the beginning.
The next, you know, turn in thepath which is transition, and
then we start digging into thedocuments and the policies and
the protocols and I always getthis question what is this?
(20:06):
Why are these documents sofilled with legalese?
And you just explained itbecause it has to track the
statute, and the statute, as weknow look, we've got people
listening all over, jennifer,not just in Florida, but
Florida's condominium act is, inmy opinion, the most bloated,
incomprehensible sharedownership statute in the country
(20:26):
, and that's what we're dealingwith it is.
Speaker 2 (20:30):
And if you went back and looked at a set of documents
I did 20 years ago, five yearsago, compared to what it is
today, you would totally go oh,I get what she's saying.
So you know, you know as wellas I do.
Some of that language isextremely hard to interpret.
(20:50):
I mean, it just is, but that'swhat we have to put in because
we have to get our documentsapproved, and that's what we do.
Speaker 1 (20:57):
It's like the Community Association Lawyers
Relief Act, because, on the onehand, they don't necessarily
like us all that much, but itvirtually guarantees that our
phones are going to ring, ouremails are going to.
You know, come to our inboxes,because, as you said, it is not
a model of clarity.
Let's just say that I did wantto talk to you about developers,
(21:20):
and this is not necessarily inyour area because you're
creating the documents, but howimportant is it for developers
and how often do they have toseek out the cooperation of
neighboring property ownersBecause they're developing now
in areas right next door?
It's very dense.
What do you think?
Speaker 2 (21:38):
It used to be an issue back in the day, people,
when South Florida wasn't sofull of high rises.
You know, from the time westarted the crane count, it
never really went down.
I don't know if you'relistening.
Public understands or remembersthe crane count, but it still
(21:59):
goes on.
There were so many condominiumsbeing developed in South
Florida.
There was a whole organizationthat would count the cranes and
it used to only be Miami-Dade,and then it moved up to Broward
and now it's up in and and PalmBeach County too.
Um, so I think that we as asociety have become used to high
(22:23):
rises.
I mean, I think, some of them.
You have to wonder what themunicipalities and I know I'm
representing developers but arethinking.
I know here in Broward we'vegot some high rises that are so
close that the biggestcomplaints we get are the debris
of the construction of thebuilding, that is literally
(22:44):
falling on existing condominiumsbalconies.
I mean, that's our bigneighboring issue and, to be
honest, once you've got thatright to build, it's not like
they're stopping yourconstruction.
Speaker 1 (22:59):
So, jennifer, you said a while ago you mentioned
car condominiums.
I got to know what that is.
I have to know what that is acondominium exclusively for cars
and also want to know whatother trends you're seeing out
there right now.
Speaker 2 (23:12):
So I have a developer who has a great concept and
he's got two projects in PalmBeach and he is going to expand
it and it's Hangar Alpha, hangarBravo and what they literally
do.
You know how you would do acondo hotel, where the skin of
the building is sharedfacilities and the air is the
(23:35):
condo association.
We've built it that way so thatthe looks are the same, the
outside of the building ismaintained and it's for you know
, there are a lot of car clubsand car enthusiasts down here,
especially now that we have theF1 race in Miami, and so it is
literally condominiums andthey're really nice and the
(23:59):
project there's a club and aclubhouse and all these car
enthusiasts they buy their units, they can work on the cars
there.
Some of them have lifts andhave three or four cars and they
do a loft and have, you know, asofa and stereo and all of that
they get together.
But you can't live there, youknow it's.
Speaker 1 (24:18):
What if you can't?
Do you have prohibitionsagainst people sleeping
overnight or just for aconsecutive number of nights?
Something like that.
Speaker 2 (24:26):
Yeah, and that's usually because of the uh
permitting and the ordinances.
What are board meetings like?
Do they drive their cars?
Everybody's happy, you know,but you don't live there.
It's their cars.
They have a good time.
It's a great concept I guess sointeresting.
Speaker 1 (24:43):
Oh so what else?
What other construction trendsspecifically?
I read about micro.
Have you done any projects withthese teeny, tiny units?
Speaker 2 (24:53):
I had several developers that looked into that
and decided against it.
There are several that arebeing developed.
I think a lot of the developersthat were going to do that as
condos switched to makingapartments making apartments.
(25:16):
But now because of the cost,see we have it's not as high as
New York, but our living costsare still like Broward County
was number one for the last fewyears just the whole cost of
living.
Micro units are now making acomeback, but they're in day
right now because that's kind ofthat the trends start down
there it's it's interestingtotally different counties.
The other thing that'ssurprising that I'm finding is
(25:40):
that what I'm going to call thenon-national kind of the local
developers, the family owneddevelopers, those types of
things they're starting to lookat units not going over three
stories.
Now, that doesn't avoid SERS,but what it does is you don't
have the construction costs, youdon't have all the insurance
(26:01):
liability, you don't have theassessment reserves that you're
going to need the maintenance toreserve for the building and
it's going to be a push-pullbecause we're running out of
land here.
So I'm finding I'm seeing thatmore on the West Coast, and then
Not to which but you're goingto have less density.
(26:21):
You're going to have less that'sthe whole point You're going to
.
You'll need more land and lessdensity.
Right, you'll be more spreadout.
Yeah, the whole reason we'vegone high rise crazy is because
land's so expensive and thedensity you can get, so also
lose the view, unless you,unless they're clustered around
water right yeah, but.
But so the thing about that isthe.
(26:44):
The buyer that you're seekingisn't looking so much for the
view as reasonable housing, andin Florida reasonable housing is
$8,000, $9,000.
Speaker 1 (27:01):
Yeah, that's a whole other podcast episode on
affordable housing.
Speaker 2 (27:06):
I have a passion for that and I speak all over the
country on attainable and I'vedone a website for one of my
organizations, ai, aiunattainable housing.
It's extremely difficult, youcan't get.
It's hard to get the cost ofpencil out and be affordable.
But even those in Florida arerunning $465,000.
Speaker 1 (27:32):
So not so attainable for most people, especially when
we've got all these fancyrestaurants moving down here,
large corporations, and youwonder where are all the workers
going to be living.
Speaker 2 (27:47):
Even the rentals are super expensive.
Speaker 1 (27:51):
As you said, I thought I read a year or so ago
that the Miami rental market wasone of the most expensive in
the entire country in terms ofwhat people's percentage of
their paycheck goes towardshousing.
Broward was number one.
Broward was number one.
Speaker 2 (28:05):
It's a very hospitality economy, so wages
stay low.
Even what I'm going to callwhite collar jobs are lower
because of our baseline andyou've got apartments running
what they cost in, like JerseyCity and those places.
I mean, it's expensive.
Jen, have you done a lot ofmixed use communities?
(28:26):
Oh yeah, that's mostly whatI've done and and that's where
we've, I've got a huge projectright now Hallandale, oasis.
Oasis Hallandale is actuallyit's it's two commercial
condominiums, it's one piece ofproperty, two commercial
condominiums.
It's got a dog park, it's gotretail, it's got shops and then
(28:51):
back in the back it's two highrise towers of residential 250
each.
It's separate.
So I had to do a master garageassociation because they're
(29:15):
sharing it and their buildingssit on it but they're not part
of it.
It was quite interesting, quiteinteresting.
Speaker 1 (29:22):
So that was complicated.
And speaking of which, so inthese a lot of the mixed use
communities, again, buyers willlook at you know the view, their
unit.
They'll oh, how cool, I can goto the Whole Foods, I can go to
the there's a dry cleaner hereand everything.
And then later they come to usand say the actual operations
(29:43):
are very complicated in terms ofthe board, their
sub-association, a masterassociation.
In terms of the board, theirsub-association, a master
association.
I think that some of this isjust inherently complicated
because you've got such anambitious development scheme.
Speaker 2 (29:57):
Well, no, it's because of 718.
So the reason that we divideand do a lot of these vertical
subdivisions in 718, we have amixed use statute that says
commercial space has to pay thesame type of assessment,
percentage-wise, as unit owners.
Well, when you've got 10,000,12,000 feet and you're paying
(30:22):
the same, it doesn't work forgetting tenants in there.
It doesn't work for gettingtenants in there, ok.
So.
And also, businesses don't wantto be controlled by residential
condominium associations, whichis what the mixed use makes you
do.
(30:42):
If you don't have equal I meanthey have equal voting.
So we used to always, we usedto always have weighted voting
for commercial units, where theycontrolled their own destiny,
so to speak, even though therewere more units.
Well, when they passed that law, we started playing with the
okay, we'll make a cube of airfor the commercial and they'll
make that a separate lot.
Then we'll do a condo lot, anda lot of that was with the
(31:06):
shared facilities.
I've done vertical subdivisionswhere we had a residential
condominium, a whole, two floorsof retail, a hotel and an
office building and instead anda garage and a garage, a garage,
(31:32):
and what I ended up doing is Icreated a declaration of
covenants and restrictions andan association, like a master
association, to govern all thoselots.
So we had a hotel lot, we had aresidential condo lot so that
the residential condo was itsown being.
And I always, if I'm doing thattype of mixed development, it
(31:53):
is very complicated from adrafting point of view, but if
you separate it that way it'smore governable and I always
make sure the association hastheir own lobby, that they're
lollipop and touch the ground,you know.
But it's very important for anassociation to have control of
all of that, because they alsodon't want to be whiplashed by
(32:18):
the commercial part.
Speaker 1 (32:19):
A hundred percent, and that's why it's so important
.
Look, I think purchasers needto have their own council.
Even for just a very basic.
I'm buying a condo unit in justa five-story building.
But when you're talking aboutthis kind of mixed-use
development and you've got ahotel component and you've got a
restaurant and you need to diginto those documents, and I
(32:42):
don't know many purchasers whoare going to be able to do that
on their own.
So it really would behoovepeople to hire an attorney real
estate attorney to help themwalk them through their
documents, while they still havethe precision rights, and
figure out whether or not thiskind of development that they
will feel comfortable with it.
Because a lot of times we'llhear well this isn't fair and
(33:02):
we're paying to subsidize thisand there's people walking
through our lobby to get andwe've got security concerns and
everything you just touched on,and a lot of it's going to boil
down to developers counsel andhow well they drafted those
documents and how much they tookinto account the long-term
operational pain points.
Speaker 2 (33:22):
Well, yeah, and again that my benefit comes from
where I am, where I am ashareholder.
What I've seen and what I careas an attorney and a person in
drafting my documents Okay, Icould draft documents that are
totally way way developer heavyand actually if a developer
(33:46):
really wanted that, I would tryto talk them out of it.
Actually, if a developer reallywanted that, I would try to
talk them out of it.
But if they're not going to doother developments to a point,
as long as they're doing itlegally, they can.
But what I have seen is that theearly remnants of our shared
facilities hotel condos I mean,they're sexy as can be, because
you've got a spa and it's fourseasons and it looks great.
(34:08):
But then all of a sudden andpeople do not read their
documents.
And it's very clear to me, evenpeople spending 10 and $12
million on a unit do not readtheir documents, and sometimes
they're too cheap to haveattorneys do it.
So what happens is is they'veoffloaded all these shared
facilities that they're payingfor, that they don't have any
(34:31):
control over the budget.
So, yeah, it's very importantto know who your developer is
and read the documents.
Speaker 1 (34:38):
Buyer beware, Jen.
Have environmental factorsinfluenced the way you draft
these documents?
Let me give you an exampleWindow maintenance, for example.
Let me give you an exampleWindow maintenance, for example.
If I'm looking at a 12-storycondominium on the coast in
Florida, does it make sense tohave the owners maintaining
(34:59):
those windows?
Have the environmental factorsinfluenced your drafting when it
comes to maintenance and?
Speaker 2 (35:05):
repair obligations.
So I've done quite a fewhigh-rise condos that are very
glass or heavy.
Yeah, I always have theassociate.
I have the.
It's, the owner's cost,association's responsibility for
balconies and the glass, theglazing, because I may be one of
(35:28):
these owners that I care but myneighbor may not even know what
glazing is, which is for thosewho don't understand.
That's making sure your windowsare properly caught and keep
the rain out.
But my philosophy in draftingthe documents and where I put
the maintenance obligations werealways with the thought that an
(35:51):
association is going to hire aknowledgeable company because
they have certain obligations ofdue diligence and stuff, but
instead of having me with aleaky unit and the neighbor next
door, because it's going toaffect the people down below me,
it's going to.
So, yes, from that point ofview, where you put maintenance
(36:14):
obligations are very important.
And again, I said somethingabout balcony and balcony
railings.
That has always been something,especially on the coast, that
I've put on the association tomaintain, split by unit owners.
Again, because, number one, theassociation is going to take
care of a problem nine times outof 10, whereas an individual
(36:38):
unit owner you can't count on.
Speaker 1 (36:39):
This is really becoming an issue in Florida now
in the last few years becauseof the CERS or the Structural
Integrity Reserve Study, whichsays that the association has to
maintain reserves for windowsif they are responsible for the
maintenance and repair of thosewindows.
So I've had a number of clientscome and say well, we want to
amend this, to push it back, thewindow maintenance and repair
(37:01):
back onto the owners.
And I always push back againstthat saying look, you think
you're going to save in terms ofnot having to reserve for those
components.
Look, you think you're going tosave in terms of not having to
reserve for those components,You're going to lose in terms of
paying legal fees, to chasethese owners when they're not
maintaining those windows, andalso with regard to insurance
premiums.
But this is the short-termthinking we're seeing right now.
Speaker 2 (37:22):
I'm going to tell you another real important point
too, to tell your unit ownersSome of the largest damage that
I've seen has not been winddamage.
It's when we have like thehurricanes, where it's like
urban, that's just rain, rainand the rain's going sideways.
I mean millions and millions ofdollars of damage, making
(37:47):
condominiums uninhabitable, andyou know as well as I do that it
can take years to settle aninsurance claim.
So if you have windows thatyou've maintained as they are
required to be maintained,you're going to eliminate a lot
(38:07):
of damage and grief.
I could not agree more.
Speaker 1 (38:11):
We're almost wrapping up here, but I do have to ask
you because, look, you havereally built a profile in the
real estate industry over thelast few decades.
What tips do you have foryounger attorneys who are
listening as to how you did it,other than just being a really
unbelievable real estateattorney, jennifer Well?
Speaker 2 (38:30):
thank you.
You do have to be good at whatyou do.
Yes, you have to have integrity.
That's very important.
You need to be consistentlyhonorable and know the statute.
Give your clients the bestadvice, but let them make their
business decisions.
And if they make their businessdecisions, then you craft your
(38:53):
documents to protect them asbest you can.
Okay, but it's also very, very,very important to be involved
in the community.
I've been involved, like yousaid at the beginning.
I've been involved inleadership for Howard.
I was president.
I was on the board for twodifferent, six and seven year
terms.
I've been very involved.
My very first communityinvolvement was the Fort
(39:15):
Lauderdale Seafood Festival.
You get to know your community.
You get to know the people.
I've been very involved in theFort Lauderdale Alliance, which
is we are the economicdevelopment entity for Broward
County.
We're the first people thatcompanies that want to move here
see us.
Well, the more you're involved.
(39:37):
We're dealing with all theC-level executives.
I'm dealing with the who's whoof business people in Broward.
You can't just do that.
You can't just show up on thescene and become a vice chair or
chair of that kind oforganization.
You have to give back to yourcommunity.
So and then the other part ofit is I have my young attorneys.
(40:02):
They need to get involved inthe believe it or not the bar
association to get to know theattorneys and also to get to
know again.
I'm going to go back to knowingthe law very well because that
helps you to become a very goodattorney.
But you need to know both sidesbecause you can't represent the
(40:24):
developers really well if youdon't know what and care about
what the buyers and the unitowners are going to care about.
Then you have to give a balance.
So I guess that's my tip.
Those are hot takes.
Speaker 1 (40:39):
I hope everyone's listening.
So, as I promised in theintroduction, I want to talk to
you about your membership in theBourbon Women Association of
Louisville.
So how did that happen and whatis so special about bourbon?
Speaker 2 (40:54):
Well, bourbon is actually delicious, but it's
also, it also has a big place inAmerican history.
It's been around.
I mean it's funny becausebefore I think we even became a
country, especially like in theKentucky area, before it was
Kentucky and Tennessee, and downthe Tennessee River, they used
to make like bourbon and it'sgot corn and it's got rye and
(41:16):
it's got barley, and then theywould ship it down on the river
to New Orleans.
That's how Bourbon Streetbecame Bourbon Street, because
all the cask of bourbon wouldend up down on that street in
New Orleans from being made upin the South.
But I got involved with thisgroup of women because there are
a lot of women distillers andwomen what I'm going to call
(41:41):
bourbon people that are in thebourbon industry.
There's a ton of women and sothis Women's Bourbon Association
out of Louisville, that's theheart of bourbon country.
Ok, and there I mean, like Peggyknows Stevens, that is Jim
Beans, that is his granddaughter, and it's just so cool, the
(42:06):
history and the and the fun, andthey teach you all about
bourbon.
You know the notes, you knowhow to taste, you know what's
good, you know what, and thenyou just have fun.
Speaker 1 (42:16):
Will you take me to a bourbon tasting?
Speaker 2 (42:18):
I don't know you can come to my house and get in.
Speaker 1 (42:23):
Okay, you're not far from me, so let's do it.
So you've been very graciouswith your time.
Last question If you could onlytake one bourbon with you to a
desert island, or?
Let's do it, so you've beenvery gracious with your time.
Speaker 2 (42:36):
Last question If you could only take one bourbon with
you to a desert island or,let's say, a particularly long
HOA meeting.
What would it be and why?
Well, that's kind of hard.
That's like making me pick one.
I would pick Midwinter's NightDram because it's absolutely
(42:56):
delicious, but if I couldn't geta bottle of that because it's
very hard to get I would.
I love Willet Rye, I lovePeerless Rye, I love Mictors Rye
, and so you were talking aboutthe Women's Bourbon Association.
We have what's called thePeacock Club and you pay an
extra fee to be a member of thePeacock Club and they go around
(43:17):
and these ladies that have beenin the like Peggy and Susan
Reituer, and these people thathave been in the bourbon
industry for years they goaround to different distilleries
and select barrels, and theyselected this Four Roses barrel.
That is almost as good asMidwinter's Night Dram, so
(43:37):
probably grab that.
I mean I've got several.
I might sneak more than one.
Speaker 1 (43:42):
Well, there you have it, and, depending on who
listens to this episode, I thinkmaybe you'll be set next
Christmas.
So, jennifer, thanks so muchfor joining us today.
Thank you for joining us today.
Don't forget to follow and rateus on your favorite podcast
platform, or visittaketotheboardcom for more ways
to connect.
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