BackerReport |
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BackerReport is a periodical addressing topics of interest to community associations in South Florida and is provided as a service to the clients and friends of Backer Law Firm, P.A. All articles are written by attorneys of Backer Law Firm, P.A. and are protected by copyright. It is important to note that court decisions discussed in this newsletter are sometimes subject to change as the parties pursue further appeals or other remedies. The articles that discuss court cases in this newsletter are based upon the courts' decisions that are released when the newsletter was written.
Florida Corporations, including condominium
associations and homeowners associations, are
required to designate a registered agent for
purposes of service of process. The purpose of the
law is to provide a designated place for the service
of the summons and complaint when the corporation is
sued. The name and address of a corporation’s
registered agent is maintained by the Secretary of
State in Tallahassee.
It is not uncommon for a community association to
designate its property manager or lawyer as its
registered agent. If the association hires a new
property manager or a new lawyer and does not file a
designation of a new registered agent, third parties
may rely upon the registered agent that is
designated by the association on the Secretary of
State’s records even though the property manager or
the lawyer who had been designated is no longer
providing services to the association. The law
provides that service of process upon the registered
agent that is designated in the Secretary of State’s
corporate records is valid even if that registered
agent no longer serves the corporation. If the
former property manager or lawyer fails to notify
the association that it has been served with
process, a default and judgment may be entered
against the association without the board ever
having actually received notice of the suit.
It is the practice of some associations to name one
of the association's officers as the registered
agent. This is not a recommended practice since the
directors change from time to time and not all
directors retire from the board voluntarily. It
would cause serious consequences if a former officer
was served and neglected to notify the board in a
timely manner.
If an association discovers that it has been sued
and a default or a default judgment has already been
entered against the association, the association
must immediately engage an attorney to seek to have
the court vacate the default and final judgment.
The association would need to establish that the
default was entered because of circumstances that
the court could conclude were excusable and that it
has a defense to the claim filed by the plaintiff.
If the association waits too long after learning
that it has been sued, the court could conclude that
the association did not act quickly enough to vacate
the default and the court could conclude that the
neglect of the association was not excusable.
Every year, the Florida Secretary of State requires
that all corporations file what is known as its
“Annual Report”. This document notifies the
Secretary of State of changes in the officers and
directors on the board. There is also a place on the
form for the designation of a new registered agent.
In those instances where the board had previously
designated an individual who no longer serves the
community, it would be prudent for the association
to change the registered agent. It is suggested
that the association not wait until it files its
annual report to notify the Secretary of State of a
change in the association’s registered agent; the
change in the designation of the registered agent
should be made promptly to avoid the possibility
that the association could be sued and served with
process without the board’s knowledge.
For those of you who use Backer Law Firm, P.A. as your registered agent, please be sure that our new address is indicated on your Annual Report before it is filed with the Secretary of State.
Backer Law Firm has become an agent of Old Republic Title Insurance Company, one of the largest title insurers in the United States. The Firm has opened All Legal Title Company, LLC to handle residential and commercial real estate transactions. All Legal is available to handle all real estate closings whether you are the buyer or the seller. Feel free to call to inquire about these new services. Typically, if All Legal will be issuing title insurance, there is no additional fee to our client. Feel free to call to inquire about these new services. |
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