Community Association Counselor

 

Laura M. Manning

 

Roberto C. Blanch

See bios at bottom of page

Last Updated 10/02/2021

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(9-23-21)

Community Associations Institute Considering

'Reforms Following Surfside Collapse

By Roberto C. Blanch

The Community Associations Institute, the leading organization representing the interests of condominium associations and HOAs, is considering several policy reform recommendations on matters such as building inspections as well as reserve studies and funding in the wake of the devastating tragedy of the Champlain Towers South collapse in Surfside, Fla.

According to a recent post in its Ungated blog at blog.caionline.org, the organization’s Government and Public Affairs Committee convened a special meeting recently to hear the recommendations from three task forces on new public policy reforms as well as best practices and guidance for local, state and federal legislators.

The three task forces focused on building inspections and maintenance; reserve study and funding plans; and insurance and risk management. They have recommended that the committee focus on reforms such as having developers provide a preventive maintenance schedule for all components that are the responsibility of the community association, not just the components included in the reserve study. They also recommended baseline inspections and regular inspections based on specific intervals, the protocols for which can be found in the American Society of Civil Engineers’ Guideline for Structural Condition Assessment of Existing Buildings, and disclosures of the findings to homeowners, residents and local governments.

The task forces also recommended that the committee consider whether state laws should mandate regular reserve studies for all community associations, reserve funding, and the disclosures of reserve studies as well as current and projected funding during annual budgeting. They also suggested the consideration of authorizing association boards of directors to approve special assessments or the borrowing of funds without votes of the entire unit-owner memberships for emergency repairs and remediations.

Now that the CAI’s Board of Trustees and its Government and Public Affairs Committee, in addition to members of state legislative action committees, have been presented with the task forces’ public policy reform recommendations, the committee members and others in the organization are being invited to indicate their support or opposition. The Government and Public Affairs Committee will reconvene in the coming weeks to vote on the recommendations and present its final recommendations to the CAI Board of Trustees for consideration and vote.

Our firm’s other community association attorneys and I will be weighing in on CAI’s reform recommendations, and we have been honored to play a role in discussions with state and local lawmakers and policymakers over the reforms that should be considered. In addition to those efforts being made by CAI, other institutions or governmental bodies are analyzing options and recommendations in the wake of the tower’s collapse. For instance, the Florida Bar’s new Condominium Law and Policy on Life Safety Task Force is reviewing many of the laws that impact condominium association laws, and is taking testimony and recommendations from various professionals and other parties, in its effort to develop and recommend legislative and regulatory changes that aimed at preventing a similar collapse.

With certainty, significant changes and regulatory reforms are soon to come following the horrific tragedy of the disaster in Surfside. The structural integrity of buildings requires responsible and effective regulation, and my colleagues and I are honored to assist condominium association managers and directors take the steps recommended to protect the safety of the millions of residents who make their homes in condominium communities.

 

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(9-9-21)

Community Association Tenant Vetting, Approvals Require Careful Guidance by Qualified Pros

By Laura M. Manning

Many community associations have the right to regulate and approve leases and tenants pursuant to their governing documents. However, some association boards of directors operate under the misconception that they can easily develop and implement new leasing restrictions via a board vote, or that they have the authority to approve or reject prospective tenants as they please without facing scrutiny for their decisions.

As I wrote in this column earlier this year in my article headlined "Suit Against Boca Condo Association Spotlights Importance of Governing Document Amendments, Filings," a lawsuit that was filed against a Boca-area condominium association highlighted the importance of properly adopting amendments to an association’s governing documents and recording them in the local court registry where the association is located.

According to the suit, the association’s new leasing restriction, which it apparently adopted via a simple vote of the board the directors, was never approved by the unit-owner members. The leasing restriction in the association’s recorded governing documents provided that owners were only restricted from renting units for terms of less than thirty days, which contradicted the new restriction that the board tried to implement on its own. If the allegations in the lawsuit hold up in court, the association could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

This case illustrates just one of the many reasons why it is essential for community associations that are considering new lease restrictions to work in close consultation with extremely well qualified association attorneys. Highly experienced community association counselors can quickly ascertain if any proposed changes require amendments to the governing documents or whether they may be enacted by a simple board vote. We can also develop the exact language that should be used for implementation of new restrictions and any amendments to the governing documents, and many of us are also familiar with new online tools that help to facilitate votes of the entire membership that may be required for such amendments.

Some declarations and bylaws for Florida communities provide associations with a right of first refusal, enabling them to accept the same terms and conditions for any good-faith lease offer that a unit-owner receives and is willing to accept. This is different from approvals and rejections of prospective tenants, which should always be conducted under the careful guidance of qualified professionals to help avoid any potential legal and financial liabilities.

First, associations need to ensure that they meet the deadlines and procedures set for tenant reviews under their own governing documents. Boards also need to take precautions to keep the personal data and records obtained in all tenant applications secure, and they should be mindful to maintain any application fees consistent with the limits set under Florida law.

In addition, it is imperative for associations to base their decisions on legitimate factors as provided within the policies set forth in their governing documents.

In today’s age of short-term rentals and eviction moratoriums, there are many reasons for associations to wish to update their restrictions for lease terms and tenant reviews. By doing so under close consultation with highly qualified legal counsel, associations can move confidently to develop and implement the policies and protocols that make the most sense for their community.

 

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(8-26-21)

Surfside Collapse Should Serve as Call to Action for Condo Board Service

By Roberto C. Blanch

Without a doubt, the tragic disaster of the tower collapse in Surfside, Fla., has impacted condominium association boards of directors across the country. In addition to board members expressing grief for the 98 victims who lost their lives and their loved ones, many condominium directors have grown concerned over news of lawsuits filed against the association for the Champlain Towers South. Some are even wondering whether they may face any legal consequences and liabilities by virtue of their voluntary board service.

In response to the misconceptions that are now circulating amongst board members and those who may be considering serving on associations boards, there are several reasons why they should not be so concerned about potential legal liabilities. Rather than avoiding board service, the collapse of the tower should serve as a call to action for conscientious unit owners to become more involved and take on the responsibilities of becoming a director.

Board members that properly and responsibly carry out their fiduciary duty to their associations are typically shielded from liability under their community’s Directors and Officers liability insurance, which associations should have to defend and protect them from most lawsuits. Additionally, indemnification provisions found in the articles of incorporation of most associations and the Florida laws governing not-for-profit corporations should provide an additional level of comfort for individuals serving or interested in serving on their association board.

Essentially, directors who act in a reasonable manner and seek the guidance of qualified professionals should feel at ease that the above-described indemnity and insurance protections will shield them from liability, and that most legal actions taken against them should be covered under their association’s D&O insurance.

These protections safeguard board members who are performing their duties from personal liability for monetary damages for any statement, vote, decision, or failure to act provided same are made or taken consistent with the fiduciary duty with which all directors are required to adhere. The aforementioned protections should provide indemnification from liability unless the directors engage in wrongful conduct, such as violations of criminal law, transactions with improper personal benefits, willful misconduct, recklessness, or acts or omissions which are committed in bad faith, with malicious purpose or in a manner exhibiting wanton and willful disregard for human rights, safety or property.

Instead of becoming overly preoccupied with unwarranted concerns over legal liabilities, condominium association directors should focus on giving careful consideration to their buildings’ structural safety and financial health. As condominium boards begin reassessing their associations’ reserve commitments, they will need the guidance of dedicated directors who are willing to put in the time and effort to make difficult decisions and gain the approval of the unit owners for major repairs and structural remediations. All buildings deteriorate over time, so condominium boards of directors need to set aside funding on an ongoing basis to repair any structural elements that require attention.

The vital nature of effective board service for condominium associations was made horribly and tragically apparent by the Surfside collapse. Unit owners, especially those with special skills such as financial professionals who could serve as treasurers, should view it as a duty to serve on their community’s board of directors. They should ask themselves: Would I feel more confident playing this vital role myself or leaving it in the hands of others to do it for me?

 

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(8-12-21)

Covid Spike Fueled by Delta Variant Creates Renewed Concerns, Precautions for Florida Community Associations

By Laura M. Manning

The news of the spike in Covid cases in Florida and elsewhere fueled by the highly contagious Delta variant is causing many employers and organizations to revisit the restrictions and precautions put in place at the height of the pandemic. Community associations in Florida have been no different, as many are now returning to mask mandates and social distancing even for vaccinated individuals in accordance with the latest guidance from the Centers for Disease Control.

After the CDC first announced several weeks ago that vaccinated individuals could safely stop wearing masks, community associations in Florida and across the country began to ease mask mandates and re-open their amenities with little or no capacity restrictions. While life appeared to be returning to normal, especially for those who received the vaccines, the latest spike in Covid cases caused by the highly transmissible Delta strain illustrates that we are not completely out of the woods yet.

Community associations, just as all other private and public sector organizations in which people congregate, are taking notice of the renewed calls by the CDC and other sources to return to masking and social distancing. This is especially true for areas with high transmission rates such as Florida, which is now leading the country in new Covid cases.

Our attorneys understand that all communities are different, and all condominium associations and HOAs will wish to tailor their response to this latest wave of increased cases of Covid to meet their specific needs and desires for their residents and staff. Our firm’s other community association attorneys and I are advising our clients to follow the CDC guidelines and municipal mandates to help stop the spread of Covid-19 and the highly transmissible Delta variant in their communities. We encourage boards of directors that are considering the reimplementation of prudent precautionary measures and safety protocols to consult closely with highly experienced association legal counsel regarding any potential changes to their rules and operations.

Our firm’s other community association attorneys and I write regularly about timely issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

 

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(7-29-21)

Assessing the Condition of Condominium Towers

By Roberto C. Blanch

The recent tragedy in Surfside, Fla., has significantly impacted our firm and the communities we serve. Our heartfelt thoughts and prayers remain with the victims and families affected by the Champlain Towers South collapse.

In the aftermath of this horrific catastrophe, many condominium association directors, members and managers have raised various questions concerning the safety and stability of their own buildings. Our firm’s other community association attorneys and I have been responding to many of these inquiries regarding the process of assessing building structural and mechanical elements, and undergoing any repairs and restorations as needed.

Because buildings age and mature differently, with possible conditions developing at different points of a building’s lifespan, associations must assess the structural integrity of their buildings and keep up with proper maintenance protocols, even in advance of the triggering of the 40/50-year recertification process. By doing so, associations can gather accurate snapshots of their buildings’ structural health, perform proactive repairs, and organize the funding necessary to move forward with large projects.

Many associations have never dealt with the decision-making and practical application that it takes to index a building or move forward with significant structural repairs. That is why it is imperative that they consult closely with highly qualified community association and construction attorneys with the necessary experience to help condominium associations navigate this process, which include:

• Vetting and hiring qualified vendors to examine buildings and perform necessary repairs.

• Evaluating engineers’ reports/findings.

• Developing plans for and properly implementing material alterations and capital improvements.

• Analyzing document requirements.

• Reconciling membership and attending meetings to discuss projects.

• Drafting meeting notices and preparing meeting packages.

• Determining special assessment requirements and the funding of reserves.

• Assisting with obtaining loans and appropriate insurance policies.

Life and safety issues in buildings should always be a priority for all associations. Having the right resources available can help condominium boards of directors to fulfill their fiduciary duties, ensure their buildings are adequately maintained and, most importantly, help keep their residents safe.

In the weeks and months to come, our firm’s other community association attorneys and I will continue our work with our clients, as well as our outreach to state and local lawmakers and policymakers, to share our insights and recommendations. We will provide updates and information on the reforms that are sure to come in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future posts.

 

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(7-15-21)

Siegfried Rivera Attorneys Share Insights with Media, Lawmakers and Community Associations in Aftermath of Tragic Condo Collapse

By Laura M. Manning

The collapse of the Champlain Towers South condominium has been a human tragedy of unimaginable proportions, and the unspeakable grief and horror of its aftermath have been shared deeply by our law firm. Our attorneys and professionals extend our most heartfelt and very deepest condolences to all those who have been affected.

Our firm’s other community association attorneys and I have made helping condominium communities contend with construction defects a particular focus of our work. We believe reforms should be considered requiring engineers to report certain serious conditions to local building departments wherever they find them. This would take discretion out of the equation and immediately involve building inspections, permits being issued and repairs being completed. We also suggest there should be new federal/state government aid and/or low interest federally backed loans for condominium associations that now engage in major structural repairs.

Our attorneys are also concerned by the great deal of misinformation that is currently circulating over the legal liabilities of association board members. We note that lawsuits against a condo association are ultimately against the building’s insurer and possibly all of the unit owners, as owners can be held responsible for liabilities incurred by their association.

The firm’s other attorneys and I have been reaching out to our clients to remind them of the importance of prioritizing engineering findings and transmitting information to new board members and property managers, to focus on structural issues over aesthetics, and to properly fund reserve accounts for any necessary repairs.

Our firm’s attorneys have also been sharing our insights on these and other issues with major media outlets as well as some of Florida’s lawmakers and policymakers. The Sun Sentinel and Daily Business Review immediately turned to our board certified construction and condominium law experts for their input in the aftermath of the collapse. A front-page article in the Sun Sentinel that appeared in the Friday, June 25, edition titled "How to Know if Your Condo Tower is Safe" includes insights from my fellow firm shareholders Stuart Sobel and Roberto C. Blanch.

The article reads:

. . . Stuart Sobel, a construction lawyer who also works at Siegfried Rivera, isn’t certain an inspection would have exposed the problem that led to the collapse in Surfside.

"Without knowing what caused this collapse it’s impossible to say if they had done the certification last year, or five years ago or 10 years ago, that it could have been avoided," he said. "We just don’t know how it came about."

Can owners, buyers and tenants see the inspection results?

Once the inspection report is filed with the county, it becomes a public record, [Roberto] Blanch said. State condo law allows unit owners to obtain the reports from the association.

"A tenant or a prospective purchaser would be able to review that record as a member of the public," he said. . .

. . . Blanch said those [40-year recertification] concerns could be alleviated if owners were "proactive" about troubleshooting problems and fixing them. . .

. . . Sobel said the inspections "should be significant comfort" for residents. "These buildings are designed to last 75 years or longer," even the older ones.

"The overwhelming majority are perfectly safe," Sobel said. "Unfortunately when something like this happens — it’s just inexplicable.". . .

. . . Are buildings safer if they were built after Hurricane Andrew in 1992?

Sobel called Andrew a "paradigm shift."

"The code improvements since Andrew are dramatic remarkable and effective," he said, In the early 2000s, there were five hurricanes in one season and "one after the next caused no damage."’

But the suggestion that pre-Andrew buildings are more likely to falter is not a given. Sobel said he lives in a home built in 1948 that has persevered through decades of storms. The home is "structurally strong and structurally sound."

The complete article is available on the Sun Sentinel’s website.

Stuart was also quoted extensively in an article that also appeared on June 25 in the online edition of the Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and subsequently in the June 29 print edition of the newspaper. That article, which focused on the first wrongful death lawsuit filed just a couple of days after the collapse, reads:

. . . Not everyone agrees the timing is right for a suit like this.

Construction attorney Stuart Sobel of Siegfried Rivera in Coral Gables says attorneys should slow down before rushing to file suit over a collapsed building. Sobel represented Miami Dade College in securing a $33.5 million settlement over the collapse of its parking garage while it was under construction at the school’s West Campus in 2012.

"You have a long statute of limitations. You don’t have to bring a lawsuit tomorrow. In my view, you’re doing it for publicity to get your name out there and get more business," Sobel said. "At its core, you have a burden of proof. You can’t just point your finger at somebody. You have to be able to prove that that person did something wrong or failed to do something right. There’s just no ability for anybody filing suits today to say that that’s the case."

Sobel noted engineers are able to forensically determine the cause of the failure and, instead, suggested letting insurance companies investigate first and make sure the claim is justified under the policy.

"They did it at the FIU pedestrian bridge that collapsed, Miami Dade College garage that collapsed, and they’ll do it here," Sobel said. "We will figure it out, but that’s going to take time."

Sobel lives 10 blocks away from Champlain Tower South and said his heart goes out to his neighbors and the first responders who have worked tirelessly to rescue survivors and recover victims.

"Their heroism is just inspiring," Sobel said. "You watch normal people doing what they’re doing, risking their lives without any recognition and any extra rewards. It’s just remarkable to me. You see it in the papers and on the TV, but when you see it in your own community it just moves me."

Thursday’s catastrophe shows it’s crucial for condo associations to take the 40-year recertification process seriously, according to Sobel, who suggests making changes as soon as an engineer comes back with recommendations. Sobel said it might also be in an association’s best interest to do a self-assessment.

"The fact that the law requires it after 40 years does not prevent a condominium association from self-assessing and making sure the building is safe," Sobel said. "Are there cracks that either merit investigation or are worrisome? If there are, don’t ignore them. I live in a single-family home. It should be no different."

There could be some tweaks to the certification process, according to Sobel, who noted that after Hurricane Andrew, building codes were changed dramatically to withstand more damage and ensure better safety for people.

"It changed everything. Roofs had to be tied down much more strongly, and construction was much more closely watched. As a result, the buildings have been much safer. That was in 1992," Sobel said. "I would expect that the same type of study of the 40-year certification and perhaps modifications of that will occur as a result of this collapse."

That said, this event is not something that everybody on a high-rise near the beach is going to have to worry about, in Sobel’s view, since 40-year inspections are generally effective.

"This doesn’t normally happen. This is extraordinarily rare," Sobel said. "It wasn’t an explosion, there was no trauma to the building, no lightning strike. You read about the possibility of spalling and the exposure of the building to the salt air. Well, that’s all gradual, but it’s not going to explain the sudden collapse of a 12-story building."

It could take years to uncover what actually went wrong, in Sobel’s experience. . .

The complete article is available on the Daily Business Review’s website (registration required).

The following week on Wednesday, June 30, the Daily Business Review featured an article in its online edition titled "Are Homeowners Associations the Bad Guy or ‘Ill-Equipped’ Volunteers?", and it quotes firm partner Gary Mars extensively:

. . . Attorney Gary Mars of the Siegfried Rivera law firm in Coral Gables is board certified as an expert in condo and community association law, and has helped associations contend with contractors and engineers over construction defaults. Although Mars said he respects the people who are filing the lawsuits, he agrees it’s too soon to tell who is at fault.

Mars says the condominium association board members, who are mostly volunteers, need to know their buildings. He says he will often ask sitting managers about their historical reporting, only to find they have no idea what kind of information that entails. But it’s information that could give a lot of insight into the health of a structure.

"There should be engineering evaluations that have occurred over time … They’ve been shelved and they’re not being looked at, but they’re a great snapshot as to the history of the property and, as things continue on through the lifespan of the property, you build off of that just like you would medical records for somebody’s person," Mars said. "That doesn’t happen most of the time. You replace managers, you replace board members in condos, and there’s really not a great source from a historical standpoint moving information to the current decision-makers."

One challenge a lot of associations face is balancing the needs of the condominium from a financial standpoint. At Champlain Towers South, many condo owners had just paid special assessment fees to begin building repairs.

"A modest building with big financial needs is really in a dilemma," Mars said. "How do we raise the capital to do the repairs? Sometimes the repairs can be in the millions of dollars and you have very modest unit ownership in regards to income levels. How do you balance that all out?"

There isn’t a great solution, according to Mars, but if possible, retaining a large reserve amount can help cover the cost of essential repairs.

"That may be an area where legislation may have some impact," Mars said. "There may be some abilities to have different types of loans available that may have some type of government backing that could provide some of these associations with the opportunity of acquiring funds to do this type of extensive, deferred maintenance."

Did the board drop the ball?

Since board members often have to rely on reports and do their own decision making, Mars said that can sometimes lead to mistakes when they interpret what they should and shouldn’t do when evaluating building conditions, their options and how to timely address issues.

While Mars said he isn’t sure if that’s the case here, he suggested taking some of that discretion away from board members and giving it to municipalities instead.

"So the engineers that would be retained may have to work with a municipality on certain issues and there should be time frames built in for the work to be performed," Mars said. "I think that may be another way so we’re not in a period where the building is aging and we now look at a 40-year period and there’s been little-to-no work done, and the situation is much more drastic than if there were some incremental repairs being performed throughout the course of the building’s aging." . . .

The complete article is available on the newspaper’s website.

In the weeks and months to come, our firm’s community association attorneys will continue our work with our clients as well as our outreach to state and local lawmakers and policymakers to share our insights and recommendations.

We also encourage everyone to consider supporting the Support Surfside fund, which is a collaboration involving the Coral Gables Community Foundation, the Key Biscayne Community Foundation, the Knight Foundation, the Miami Foundation, the National Basketball Association’s Miami Heat, and the Miami Heat Charitable Fund. Additional information is available at https://www.supportsurfside.org/.

 

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(7-1-21)

CAI Addresses Guidelines on Pools, Vaccines in Community Associations

By Roberto C. Blanch

The Community Associations Institute, the largest organization representing the interests of condominium and homeowners associations in the world, provides many excellent resources for association directors, members and property managers. One of the organization’s best online resources is its "Ungated" blog at www.blog.caionline.org, and two of its recent entries focused on some of the most important and ubiquitous Covid-related issues that are currently weighing on associations.

In the June 3 post, titled "Diving in: More community pools are open for the summer," pandemic-related pool rules and operations are discussed. The post is based upon a survey of roughly 1,000 members of the Community Associations Institute regarding their pool plans for 2021, and it revealed that only two percent of survey respondents plan to close their pools this summer season. This survey result is in stark contrast to the nearly 44 percent of CAI members who planned to close their pools during the summer season last year.

It is worth noting, however, that more than a quarter of respondents in the CAI survey were still undecided about their pool rules and policies for the remainder of the year due to ongoing coronavirus concerns. Additionally, forty percent of survey respondents confirmed they were planning to require residents to sign a liability waiver when pools reopen.

Regardless of whether an association board wishes to continue to keep pools closed for the summer, open pools, or perhaps even wish to consider requiring a liability waiver or other conditions for pool use, it is imperative that association boards work with qualified legal counsel to discuss, not only the pros and cons of each option, but also the best practices in effectuating the chosen option to protect the association’s legal interests.

CAI also posted a blog article pertaining to the COVID-19 vaccine titled "Calling the shots: Addressing COVID-19 vaccines in your community." This May 27 entry discusses how associations are addressing and discussing the COVID-19 vaccines with their residents. It notes that the vaccines continue to be a frequent trending topic in CAI’s members-only "Exchange" discussion forums, where several conversations have focused on whether to require proof of vaccination from residents to use pools.

The entry notes that the Centers for Disease Control and Prevention recently recommended a few strategies for discussions concerning the vaccines. These include:

• Listen to questions with empathy. The vaccines are new, and it’s normal for people to have questions about them.

• Ask open-ended questions to explore concerns. The questions should help you understand what the individual is worried about, where they learned any troubling information, and what they have done to get answers to their questions.

• Ask permission to share information. Once you understand questions and concerns, ask if you can provide some information from a source that you trust.

Visit CAI’s blog and other online resources on its website at www.caionline.org to read these and other complete articles on timely issues for associations.

As vaccination rates continue to rise across the country, communities are now returning to a version of pre-pandemic operations. To ensure informed decisions are made in this regard, our firm’s other community association attorneys and I urge association directors and managers to consult closely with highly experienced association legal counsel regarding any potential changes to their rules and operations pertaining to COVID-19 precautions.

 

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(6-17-21)

Suit Against Boca Condo Association Spotlights Importance of Governing Document Amendments, Filings

By Laura M. Manning

A lawsuit that was recently filed against the Prom-enade at Boca Pointe Condominium Associa-tion highlights the importance of properly adopting changes to an association’s governing documents and recording them in the local court registry where the association is located. If the allegations in the lawsuit hold up in court, the association for the Boca-area community could be forced to pay the plaintiff unit-owners’ lost rental income and legal bills.

According to the suit, the association is making up rules to prevent condo owners Gerardo and Ana Vizcaino from leasing their unit for a full year. The suit states that the association’s new rule, which it apparently adopted at an August 2020 board meeting after a simple vote of the board the directors, was never approved by the members by a formal vote.

Indeed, the suit alleges that the association president acknowledged in a notice to all of the unit owners that the board’s adoption of a rule restricting rentals to one tenant per 12-month period was invalid because it had not been approved by the unit owners via an amendment to the governing documents. The only restriction in the association’s recorded declaration pertaining to rentals states that owners are only restricted from renting units for terms of less than thirty days. No other restrictions are included in the recorded governing documents.

Amendments to an association’s recorded governing documents typically require a vote of the entire unit-owner membership, and sometimes minimum approvals of 2/3 or even 3/4 of the members are required for an amendment to be considered valid.

While these high thresholds make changes to recorded restrictions much more difficult to implement than via a simple board vote, that does not necessarily mean that such changes are not worth pursuing and in accordance with a community’s best practices and interests. Times change and communities evolve, and the current owners may now wish to further restrict rentals or implement other rules that require amendments to the governing documents and, therefore, a vote of the entire association membership.

In fact, this is just another of the many reasons why it is imperative for associations to work exclusively with highly experienced and qualified association legal counsel to avoid any missteps in their implementation of new rules and policies. Cutting corners to avoid costs and/or the serious challenges of conducting a vote and securing the requisite approval of the membership could lead to severe legal liabilities and exposure, in addition of course to having any such newly enacted rules and policies quickly declared null and void.

Experienced association attorneys should be able to discern if certain changes require amendments to the governing documents or may be enacted by a simple board vote – and the exact language that should be used for their implementation. Indeed, many of us are also familiar with all of the latest voting tools and techniques that associations are now using to implement changes to governing documents and conduct other votes of the entire membership. For example, Florida law allows for electronic voting for community associations, and new apps and websites such as OnrApp (www.onrapp.com) enable associations to plan and implement voting for all of the unit owners as efficiently and effectively as possible.

As this recent lawsuit indicates, the notion of implementing new rules that expressly contradict a community’s governing documents via a simple board vote and without the requisite approval of the membership is a losing proposition. By avoiding such misguided attempts to circumvent the system and always working in close consultation with extremely experienced and knowledgeable association attorneys, condominium associations and HOAs can develop and execute amendments and policies that are legally enforceable and in keeping with what’s best for their community and its owners.

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(6-3-21)

Additional 2021 Legislative Updates

By Laura M. Manning

This year’s legislative session proved to be a busy one, with a number of bills passed by the Florida Legislature that will impact community associations throughout the state. Our firm recently covered the passing of Senate Bill 72 in our blog , www.FloridaHOALawyerBlog.com. Also known as the Civil Liability for Damages Relating to COVID-19, the new law helps to shield associations from Covid-related lawsuits.

The following are summaries of additional bills that have passed the Legislature and, as of the press deadline for this column, are pending action by the Governor:

Senate Bill 630: Community Associations

Senate Bill 630 represents sweeping changes for Florida communities. These changes include allowing condominium associations to use the demand for pre-suit mediation process; increases the amount that can be charged for a transfer fee from $100 to $150; addresses insurance subrogation by clarifying that if a condominium insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner in the association may not provide rights of subrogation against the association; and clarifies that associations’ emergency powers extend to health emergencies and includes holding virtual meetings and implementing plans based on advice from health officials.

The legislation also prohibits associations from requiring certain actions relating to the inspection of records; revises requirements relating to the posting of digital copies of certain documents by certain condominium associations; authorizes condominium associations and cooperatives to extinguish discriminatory restrictions; revises the calculation used in determining a board member’s term limit; and deletes a prohibition against employing or contracting with certain service providers. The bill also makes important limitations to homeowners’ association rental restrictions adopted after July 1, 2021 and provides that any governing document or amendment to a governing document enacted after July 1, 2021, in connection with certain rental restrictions will apply only to parcel owners who acquire the property after the effective date of the governing document or amendment, or to parcel owners who consent to the governing documents or amendment.

The bill also brought changes to condominium association websites, allowing them to make their official records available on mobile apps and now allowing both condominiums and homeowners associations to adopt rules for posting notices on websites and mobile apps, provided that electronic notices are still emailed to members who have consented to receive electronic notices. The bill also requires that notices of intent to record a claim of lien specify certain dates. It authorizes parties to initiate pre-suit mediation under certain circumstances; specifies the circumstances under which arbitration is binding; revises requirements for certain fines; revises provisions relating to a quorum and voting rights for board members remotely participating in meetings; revises the procedure to challenge a board member recall; revises the documents that constitute the official records of an association; revises the types of records that are not accessible to members or parcel owners; revises the circumstances under which an association is deemed to have provided for reserve accounts; and authorizes certain developers to include reserves in the budget. This act shall take effect July 1, 2021.

House Bill 463: Community Association Pools

This bill exempts private community association pools with fewer than 32 units or parcels from supervision by the Department of Health, except to ensure water quality. This act shall take effect July 1, 2021.

House Bill 649: Petition for Objection to Assessment

This act allows community associations to object tax assessments on its behalf or on behalf of their owners and provides the manner in which to do so. This act shall take effect July 1, 2021.

Senate Bill 56: Community Association Assessment Notices

This bill changes the notice requirement of a foreclosure action from 30 days to 45 days. It also specifies that invoices for assessments must be delivered to unit owners by first-class United States mail or electronically to the email address maintained in the association’s records. Prior to changing the method of delivering an invoice for assessments, associations must first deliver written notice of the change to the owner by first class mail at least 30 days before sending assessment and the owners must affirmatively acknowledge the change electronically or in writing. Prior to requiring payment of attorney fees related to past due assessments, a written notice (using the new form provided) of late assessment must be sent to delinquent owners by first-class United States mail providing a 30-day opportunity to pay without also having to pay attorney’s fees. This act shall take effect July 1, 2021.

House Bill 421: Relief from Burdens on Real Property Rights

This bill allows, under certain circumstances, property owners who have been burdened by government actions to keep their rights to make claims against governmental entities even after relinquishing title. This act shall take effect on October 1, 2021.

Senate Bill 1966: Department of Business and Professional Regulation

This act disqualifies board members from eligibility to run for the board if they are delinquent in their assessments only rather than other monetary obligations. The act provides that a person is considered delinquent if a payment is not made by the due date specifically identified in the declaration of condominium, bylaws, or articles of incorporation. Should a due date not be specified, the act determines the due date is the first date of the assessment period. It requires a board to adopt the annual budget 14 days prior to the start of the fiscal year, otherwise it is deemed in minor violation and the prior year’s budget will continue to be in effect until a new budget is adopted. This act shall take effect July 1, 2021.

House Bill 403: Home-Based Businesses

This law prohibits local governments from taking certain actions relating to the licensure and regulation of home-based businesses. However, whatever restrictions were already in place by an association, or those that are created in the future, will not be overridden or preempted. This act shall take effect July 1, 2021.

House Bill 483: Electronic Legal Documents

This act makes technical changes relating to remote online notarizations. It also modifies witnessing procedures and contains numerous clarifications. This act shall take effect upon becoming law.

Our firm’s other community association attorneys and I will continue to provide updates on any legislation that may impact the community association industry. To track these bills or read the full text of each enrolled bill, visit www.flsenate.gov.

 

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(5-20-21)

Post-Pandemic Changes to Disaster

Preparedness for Community Associations

By Laura M. Manning

The Covid-19 pandemic has expanded the parameters and elevated the importance of disaster preparedness in community associations. Prior to the start of the 2021 hurricane season, community association boards of directors and property managers should reassess their disaster preparedness plans to ensure they are ready for anything and everything.

Some of the elements of a comprehensive disaster preparedness plan include detailed site plans, especially for large communities, a communications plan with all current contact information for board members and key staff/vendors, and an evacuation plan with information on public shelters as well as local gas stations and grocery stores with backup generators. Insurance information is also a must, and it should always include copies of all policies and information on claim-filing protocols.

The uncertainty caused by the pandemic also spotlighted the importance of unit-owner communications. Comprehensive disaster preparedness plans should include all current contact information and any other preparations necessary for outreach to residents via calls, text, email, and hand-delivered notices to all dwellings.

The contact information for all key vendors and professional service providers is also vitally important. As the coronavirus pandemic so dramatically illustrated, experienced attorneys, insurance agents, accountants and other highly qualified professionals proved to be invaluable resources for association directors to turn to for answers in a very fluid and evolving situation. Preparations should include outreach to these and other professionals prior to and throughout the course of an emergency to help ensure that an association’s actions and policies are legally sound and effectively executed.

Association directors and property managers, with help from highly experienced and qualified professionals, can make a significant impact prior to, during, and after public disasters by steering their community through the challenges of an emergency as deftly as possible. By developing and following a thorough preparedness plan that takes into account all the lessons learned from the pandemic, associations can be better prepared for anything and everything that comes their way.

Our firm’s other community association attorneys and I write about these and other important issues for Florida community associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

 

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(5-6-21)

Florida Enacts Covid 

Liability Protections Law

By Laura M. Manning

The Florida Legislature made Covid-19 civil liability protections for businesses, healthcare providers, non-profits, and other organizations a major priority for the 2021 session, and on March 29th it became the year’s first bill signed into law by Gov. Ron DeSantis. SB 72, the bill that provides several Covid-related liability protections for businesses, healthcare providers, educational institutions, government entities, religious institutions, and not-for-profit corporations such as community associations, is now the law in Florida.

Under the new law, covered entities are shielded from civil liability for Covid-related lawsuits for monetary damages, injury or death so long as the allegations do not involve gross negligence or intentional misconduct. Florida community associations that have implemented measures to safeguard their residents and staff from the potential spread of Covid-19 and comply with local, state and federal guidelines are protected from liability for Covid-related lawsuits.

Individuals seeking to file claims for coronavirus-related injuries or death against covered entities will need to provide an affidavit from a medical professional asserting that they contracted the virus at the corresponding property. The claims must also demonstrate "clear and convincing evidence" of "gross negligence" — a high legal standard — in order to establish its validity. In order to prevail, plaintiffs will also be required to demonstrate in court that a defendant did not make a good faith effort to comply with public health guidelines.

The new law also sets a one-year statute of limitations for the filing of lawsuits from either the date of death, hospitalization or the Covid diagnosis involved in the claim, whichever is latest. It applies to claims that accrued before its enactment and within one year following the Governor’s March 29 signing, but it does not apply to lawsuits that have already been filed.

Community association boards of directors should continue to bear in mind that Florida remains under a state of emergency until at least June 26, though that date might change if the order is extended. Even with new vaccines rolling out across the country, health officials are warning of another surge in cases caused by diminished precautions and new variants of the virus that are even more contagious than the original strain.

Some Florida counties are still requiring facial coverings in places where people congregate, including community association common areas. Therefore, our firm’s other community association attorneys and I are encouraging boards of directors to continue to maintain prudent precautionary measures and safety protocols to help prevent the spread of coronavirus in their communities.

 

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(4-22-21)

Important Considerations for Community Associations’ Use of Security Cameras

 

By Roberto C. Blanch

Security cameras in community associations, especially in sprawling HOA communities with gated entries and considerable common areas, help to provide residents and guests with an added measure of peace of mind. However, there are important privacy considerations for associations seeking to install surveillance systems, and there are also questions about whether these systems may constitute material alterations that must be approved by a vote of an association’s membership.

In general, community associations are allowed to install and utilize security cameras to monitor their common areas. The most important limitation in their use is that the cameras should not be positioned to view areas in which residents may reasonably expect a level of privacy, such as restrooms, locker rooms, and private dwellings or backyards.

Another important consideration is whether the deployment of security camera systems constitute a material alteration which may require a vote of the association’s voting interest. Decisions over this issue in arbitrations before the State of Florida’s Division of Condominiums, Timeshares and Mobile Homes have held that security camera installations may be considered material alterations. Therefore, unless an association’s specific governing documents provide otherwise, they may first have to be approved by a vote of the owners, which in some cases may be at least 75 percent of the membership. Some association governing documents require less than the statutory 75 percent threshold to approve a material alteration, and some only require membership approval when the cost of the alteration exceeds a specific amount.

However, several arbitrations before the state regulatory agency hold that an association board of directors can approve security cameras when they are considered necessary to protect the common elements. These decisions indicate it is improper for associations to avoid membership approvals just because cameras would make it less likely for criminal activity to occur. Instead, an association must find that a demonstrated history of crimes in the community or its surrounding area necessitate cameras to help prevent and prosecute such activities.

The questions of monitoring, storage and access to the footage shot by cameras must also be addressed prior to their deployment. Monitoring by professional security services can be cost prohibitive for some associations, and the storage of the video recordings and restrictions limiting who could access the footage are important considerations for associations to resolve prior to installations. For example, some associations require a court-ordered subpoena for unit owners to request and view footage, and the policies on access to the footage should be communicated to all owners and residents.

Associations considering the installation of security cameras should first consult with experienced association legal counsel to evaluate all of these and other important considerations. After a careful review of all the pertinent information, including the corresponding elements of an association’s governing documents, qualified attorneys will be able to provide informed and authoritative guidance as to how to proceed.

 

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(4-8-21)

A Primer on Florida Community Association 

Voting by Proxy

By Laura M. Manning

Community associations often struggle with secur-ing a quorum, which is the minimum number of voting interests required to be present in order to conduct a meeting of the members, and this challenge has been exacerbated by the pandemic. One of the most effective ways for associations to secure enough votes from unit owners to achieve a quorum and conduct their business is through the use of proxies.

A proxy is a document that allows a designated individual to attend and participate in a meeting in place of a unit owner. Florida condominium laws provide that unit owners may not vote by "general proxy" but may vote by a "limited proxy" that substantially conforms with the form provided by the state’s Division of Condominiums, Timeshares and Mobile Homes.

Limited proxies for association votes must contain a specific statement of what the unit owner is voting on and how the unit owner is voting. A unit owner cannot vote on specific substantive questions by a general proxy, which can be used only for the purposes of establishing a quorum and non-substantive votes, e.g., the approval of minutes, adjournment or continuance of meetings, and other matters that do not specifically require a limited proxy.

Limited proxies are required to be used when voting on reserves, changes to financial reporting requirements, amendments to governing documents, or other matters requiring a vote of the entire association membership. There are also other specific limitations on the use of proxies, including that they are only valid for up to 90 days from the date of the first meeting for which the proxy was given and the proxy holder must be in attendance, in-person at the meeting.

There may also be additional limitations on the use of proxies contained in associations’ governing documents, so experienced association attorneys should be consulted to ensure that the use of proxies by unit owners complies with both the state’s condominium laws and the governing documents.

Members of association boards of directors cannot use proxies to vote at board meetings when the director is not in attendance. Only unit owners can use proxies to participate at membership meetings they do not physically attend.

Our firm’s other community association attorneys and I write about important matters for Florida community associations such as this in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

 

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(3-25-21)

 

"They Put Me Through Hell," Says Homeowner After Contentious Battle With HOA, $33k Settlement

By Roberto C. Blanch

Community association collections of monthly dues and other monetary obligations from unit owners have been strained by the Covid-19 pandemic. Given that many families are now struggling with lost work and businesses, some associations have cut back on expenses wherever possible and carefully considered their collections options with debtor owners.

However, occasionally we learn of erroneous or overzealous community association collections efforts reported on local news outlets across the country, perpetuating a negative stereotype of associations being exorbitantly stringent.

One example of such a report appeared recently in the newscasts of WFTV Action 9 News (ABC) in Orlando and Central Florida. The station’s report chronicles how Mims, Fla. residents Cindy Decker and her husband were threatened with foreclosure by their HOA for a debt they claimed to not owe.

"They put me through hell," she says in the report.

The Deckers, who had raised six children in the home where they have lived for the last 26 years, say they fell behind on their association dues to the Lake Harney Woods Property Owners Association. They claimed that they eventually made good on their debt with the issuance of a check for $892 to cover everything they owed, but Cindy Decker said one month later the association filed a claim of lien against her home to collect the dues and fees that she had just paid.

The suit was filed by the association’s new law firm, but Decker had purportedly paid its previous attorney right before the switch. She claimed to have a receipt to show the full payment was received, but the new attorneys insisted she now owed $1,300.

Decker said she pleaded her case to the HOA’s board at a meeting to no avail. She states the HOA president blamed her for paying the wrong law firm and refused to end the foreclosure.

Decker hired an attorney, and the association was soon facing a claim that it violated the Fair Debt Collections Practices Act, a law which protects consumers from improper practices, abuses or harassment in connection with efforts to collect certain debts.

Eventually, the association and its new attorneys settled the case prior to going to trial to the tune of $33,000 in damages to Decker. While the association did not respond to the station’s requests for an interview or statement, it is our understanding that the new law firm released a statement saying its attorneys rely on information provided by others and issues arise on rare occasions.

While issues certainly do rarely arise, the circumstances from this case as presented by Decker in this news report describe what may be characteristic of errors in judgment that may be made both by associations and their legal representation. For instance, association boards, managers and legal representatives should carefully evaluate claims from owners stating they have paid the monetary obligations alleged to be owed to the association – particularly when the owner claims to have a receipt to prove it.

In cases such as the one presented in this news report, an association should consider resolving the circumstances which arise due to the payment made to its former law firm rather than compelling the owner to do so.

Apparently, as Decker’s narrative illustrates, the association’s alleged unwillingness to proactively resolve matters exposed it to potentially severe legal liabilities, so much so that it decided to settle for an amount which appears to be more than 25 times the amount it claimed the Deckers still owed.

Such media reports of associations going too far in their collections efforts, or their rules and enforcement measures, diminish the reputation of all communities governed by associations and exacerbate their negative image as being too harsh and severe. Community associations, their attorneys and property managers would be well advised to use reasonable and sound judgment in their collections and enforcement efforts, especially now when the courts can be expected to sympathize with Americans contending with the strains caused by the pandemic and the resulting economic fallout. By doing so, community associations may avoid the potential for costly litigation as well as damaging media coverage.

 

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(3-11-21)

Florida Condominium Association Director Term Limits Don’t Apply Until 2026

By Laura M. Manning

Amendments to the Florida Condominium Act enacted in 2018 provide that association board members may not serve more than eight consecutive years, unless they are elected by more than two-thirds of the voting membership or there are not enough eligible candidates to fill the board vacancies at the time of the election.

The initial guidance from the Florida Division of Condominiums, Timeshares and Mobile Homes under the Department of Business and Professional Regulation was unclear, but last summer it concluded that years of board service prior to the date that the law went into effect in July of 2018 did not count towards the eight years of consecutive service precluded by the new law.

Essentially, this meant that only condo association board members who serve eight consecutive years starting in or after July 2018 will be disqualified from additional service unless the specific exemptions are met. This clarification by the Division of Condominiums has helped to allay concerns by association boards with long-term members from prior to 2018, as those directors will have at least five more years of eligible service.

While some communities thrive under long-term board members, our firm’s other community association attorneys and I recommend that all those residing in communities with associations view board membership in the same vein as a civic duty. An effective board is essential for the financial and administrative wellbeing of associations, so all eligible unit owners should consider running for the board of directors as their contribution back to their community.

In no way are the responsibilities of serving as a director too complex and demanding for the capabilities and skillsets of most association unit owners. What it requires is their time and dedication, but not to the point where it becomes too daunting for the average owner.

Aside from the guidance of highly experienced association legal counsel, board members can also make ample use of authoritative online resources that offer the most vital information for associations. The Community Associations Institute, which is the largest organization representing community associations in the world, offers a great deal of helpful articles and guides at www.caionline.org. Also, our firm’s blog at www.FloridaHOALawyerBlog.com is one of the leading sources for information for community associations in the state, and we encourage association directors, members and property managers to visit it and enter their email address to automatically receive all our future articles.

 

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(2-25-21)

Charges Against Former Marco Island City Councilman for Condo Election Fraud Demonstrate Need for Careful Oversight of Association Elections

By Roberto C.  Blanch

Recent news reports chronicle the tale of a former Marco Island city council member who was charged with three counts of forgery of a ballot envelope and three counts of criminal use of personal identification information, which is third-degree felony, in his condominium association’s annual board of directors election.

The reports from the Naples Daily News and several Southwest Florida TV stations indicate Victor Rios, 78, was charged with forging ballots for the Belize Condominium Association election to remain a board member. Several ballots for the property’s March 2019 condo election were cast under the names of residents who testified that they had not voted in the election, and their signatures on the outer ballot envelopes were forgeries.

Complaints alleging election fraud were filed with the state’s Division of Condominiums under the Department of Business and Professional Regulation, and with the Marco Island Police Department. MIPD subsequently asked the Florida Department of Law Enforcement to investigate the matter because Rios was a sitting city council member at the time.

FDLE lab analysis eventually revealed a DNA profile matching Rios on the ballots cast in the names of the residents who had not voted. The ballot envelopes contained personal identification information of the victims, including their names, condo numbers, and forged signatures.

Rios turned himself in to the Jacksonville Sheriff’s Office Department of Corrections on Feb. 5 and has since been released after posting a $30,000 bond.

As these and other recent media reports illustrate, the changes to the state’s laws in 2017 to add teeth to the criminal penalties and enforcement for community association fraud seem to be helping to prosecute some perpetrators, but election fraud as well as theft and embezzlement continue to remain serious problems for some communities. Associations should work very closely with highly qualified and experienced legal counsel to oversee their annual meetings and elections, and they must be vigilant in monitoring for any potential election irregularities that should raise a red flag and require immediate attention.

 

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(2-11-21)

Bills Impacting Community Associations 

in 2021 Florida Legislative Session

By Laura M. Manning

There are several bills being debated by state lawmakers in the current legislative session that will impact Florida community associations. The most significant proposed legislation for associations is also one of the most important for many of the state’s businesses.

HB 7, which creates COVID-19 liability protections for Florida businesses and nonprofit organizations, including community associations, has cleared its first committee stop with an 11 to 6 vote. Its advocates contend the measure is a necessary component to Florida’s economic recovery. The Florida House Speaker has vowed to make the bill a priority. Its next stop is the House Health and Human Services Committee.

One of the other measures that community association industry watchers are tracking is HB 21. House Bill 21 revises the requirements for construction defect causes of action relating to certain violations, and revises provisions relating to the requirements for notices of claim, property inspections, and service of copies of notices.

There are also bills pertaining to vacation rental properties that seek to pre-empt local regulations with state laws governing rentals and establishing licenses for such units by the Division of Hotel and Restaurants under the state’s Department of Business and Professional Regulation.

A couple of bills have also been introduced that would impact community association assessment notices and authorize associations to extinguish discriminatory provisions from their governing documents.

Our firm’s other community association attorneys and I will continue to monitor the progress of these and other bills impacting community associations as they make their way through this year’s legislative session. We encourage industry followers to enter their email address in the subscription box in our blog at www.FloridaHOALawyerBlog.com to receive all of our latest articles.

 

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(1-28-21)

Conducting Community Association Virtual Annual Meetings in Compliance with Florida Law

By Roberto C. Blanch

With the Covid-19 vaccines now rolling out across the country, there is hope that in the coming months gatherings of individuals who have been inoculated could safely take place. In the meantime, many community associations are continuing to conduct virtual meetings with attendees participating online or via telephone conference.

However, various provisions of the laws governing Florida condominium and homeowner associations raise questions regarding whether such virtual meetings are being conducted in a manner that is compliant with such laws. For instance, applicable condominium laws stipulate that annual meetings of the unit owners for board member elections must be held at the location provided in an association’s governing documents or, if none is specified, within 45 miles of the condominium property. This leads to the question of whether purely virtual annual meetings comply with the law.

The unprecedented circumstances arising during this pandemic has therefore caused many community association managers and board members to become creative – seeking to achieve continuity of association business vis a vis directors’ and members’ meetings, while seeking to balance the protections recommended by health care providers and organizations promoting social distancing. One example is that some associations, in an effort to ensure that a condominium’s virtual annual meeting complies with the law, have made arrangements for the board of directors’ meeting to convene physically on association property while allowing members to attend by Zoom or other platforms. In those cases, the unit owners have been provided with notice of such meeting, which has included the login and call-in information to enable all the association members to attend the meeting online or via telephone. In some cases, personal attendance by members has been prohibited and in others, the in-person participants could be limited to only the board members or perhaps a single board member, along with any necessary staff and legal counsel.

By contrast, Florida laws governing homeowners association annual meetings do not stipulate that they must be within 45 miles of the community. Rather, they simply provide that the meeting must take place at time, date and place that is specified in the association’s bylaws. Most HOA bylaws either require that the meeting be held within the county where the community is located, or they do not indicate a location.

The foregoing illustrates just a few creative approaches being implemented throughout many community associations, in efforts to allow for necessary business within those communities to continue while allowing for owner participation and awareness of same. With that in mind, other factors contemplated by applicable Florida laws which govern community associations, such as the declaration of emergency powers by boards and perhaps the adoption of electronic notice and voting options, should also be considered in efforts to strike the optimal balance between the need to continue with business as usual and the reality of having to do so in a landscape that is vastly different than it was at time during which the applicable laws were established.

Our firm’s other community association attorneys and I have been working closely with our clients to enable them to develop and implement processes and precautions to help with the transaction of association business in an open and effective manner during Covid-19. We encourage association directors and property managers to consult with highly qualified and experienced association legal counsel regarding their protocols to keep their communities as safe as possible during the pandemic.

 

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(1-14-21)

Community Association Service Contracts Do’s and Don’ts

By Laura M. Manning

One of the most important tasks for community association board members is the oversight of maintenance, cleaning, security, valet parking, construction/painting, landscaping and other vendor services. These essential services require the use of written contracts that should include vital protections for associations, which would be well advised to turn to highly experienced community association attorneys to help ensure such contracts include all of the appropriate stipulations.

One of the primary considerations for most of these contracts is insurance. Vendors must maintain proper and adequate insurance to protect associations, their staff and their residents from any potential legal and financial liabilities that may arise from the execution of the services being performed under the contract. At a minimum, vendors’ insurance should include worker’s compensation coverage for employees who may by injured while on association property as well as general liability coverage.

The association should also insist that it be named as an additional insured and certificate holder, which would require that it be notified of any changes in the contractor’s insurance.

Vendor contracts should also clearly delineate all the service provider’s and association’s responsibilities under the agreement. This includes the specific services that need to be completed, the timeframe within which the work must be performed, payment terms, penalties for nonperformance, and termination terms for both parties. Having these parameters in writing will help to reduce the potential for any conflicts between the parties.

The most effective vendor contracts also stipulate the exact methods to be used by both parties to resolve any disputes that may arise. Alternative dispute resolution proceedings can provide significant benefits over the courts for many types of disputes, so parties to these contracts should consider calling for their use in the written service agreement.

If a vendor is offering a warranty for their work, the details of the warranty should be included in the contract. This should include exactly what is covered under the warranty, its timeframe, and the process for requesting repairs.

By working with highly experience community association legal counsel for the review and execution of important vendor contracts, association board members and property managers can be sure to include all of the necessary provisions to protect the association and avoid potential disputes.

 

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(12-31-20)

Community Association Changes to Package

Deliveries Post-Pandemic

By Roberto Blanch

Consumer’s preferences for online shopping have grown to new records this year during the pandemic, and shipping and delivery volumes are also accordingly at all-time highs. Given the constant flow of deliveries to condominium communities and HOAs, many associations have chosen to change the way deliveries are handled to prevent the possibility of their leading any potential Covid-19 contagion.

A recent article on this topic in the HOA Resources magazine of the Community Associations Institute reports that the Centers for Disease Control and Prevention recommends contactless deliveries, meaning limited or no contact with package recipients or potentially contaminated surfaces such as doors and pens.

"To increase resident safety, some condominiums’ coronavirus protocols include spraying packages with disinfectant before bringing them inside. Small packages are being slipped to recipients through a plexiglass window, while some condo buildings are prohibiting the delivery of large pieces of furniture, like mattresses, that would require the help of a third-party service or the building staff," the article reads.

The report also includes helpful tips to prevent package theft, such as the scheduling of deliveries for expensive items, using doorbell cameras (in accordance with association rules), and opting for pickups at retail locations and outlets for large packages and purchases.

Our firm’s other community association attorneys and I are helping many association clients to develop and implement their Covid-19 protocols as effectively as possible. We encourage association boards of directors and property managers to work in close consultation with highly qualified and experienced community association attorneys for guidance on all matters involving coronavirus-related procedures and restrictions.

 

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(12-17-20)

Wild Hogs Invading Florida Communities Require

Immediate Attention, Cooperation by Local HOAs

By Laura M. Manning

Recent TV news reports of wild hogs invading several Florida communities in Manatee County reveal a serious problem that requires a considered and measured response.

The reports, which aired in recent newscasts in the Tampa Bay area by WFLA and WTSP, chronicle daily sightings and incidents of packs of wild pigs at the River Club community and surrounding neighborhoods.

Community resident Phil Pape says that in October and November the problem became seriously out of control. He and several of his neighbors tell the stations’ reporters that the wild pigs are wreaking tens of thousands of dollars in damage to their properties. The hogs tear up lawns and landscaping in search of food underneath the turf, replacing pristine lawns with a muddy mess.

"My neighbor next door, three-quarters of her property is all torn up," states Pape, who notes that the hogs had been eating acorns in another neighbor’s property and he’s seen packs of as many as 30.

Homeowner Bob Lapp notes that he and other homeowners have been racking up damages around their homes, but they don’t want to fix everything until they know it won’t happen again. "The hard part is the fact that you could spend $1,000 today and wake up tomorrow morning and it would be all over again," agrees Pape.

The River Club HOA has allowed trappers onsite and set up traps, but homeowners such as Daryl Bernstein tell the stations the traps are not working and have not made a difference.

"I think it needs to be a bigger approach. River Club can’t do it by themselves, Lakewood Ranch can’t do it by themselves, Braden Woods can’t do it by themselves," concludes Pape, who is probably exactly correct in his assessment because the hogs obviously know no boundaries.

"I would like to see a big community approach to it," he states. "Maybe even a small hunting season where people would be allowed to come in and kind of thin it."

From the videos and photos from the stations’ reports and websites, the growing problem is indeed very severe. Based on the comments of the homeowners, it appears apparent that the invasion will continue to intensify unless measures are implemented to mediate it.

According to information and a helpful flyer from the website of the Florida Fish and Wildlife Conservation Commission, preventing wild hogs from invading property can be difficult, but adequate fencing should keep them out of small yards and gardens. On private property with written landowner permission, wild hogs may be trapped, shot or hunted year-round with no fees, licenses or permits required (including when using a gun and light during non-daylight hours). Hunters may use dogs and any legal rifle, shotgun, crossbow, bow, or pistol; hogs of either sex may be harvested, and there is no size or bag limit.

Poisoning wild hogs is prohibited, and trapped animals may only be released on a property with landowner permission. Prior authorization from the Commission is not required for individuals wishing to remove wild hogs from private lands with landowner permission, and private nuisance wildlife trappers offer services for their trapping, removal and disposal. All traps must be checked at least once every 24 hours, and any captured non-target species must be released on site.

Given these relatively lax regulations, there is a great deal on the table for discussion among the boards of directors at the affected communities, which will need to work together to implement effective strategies for their entire area. They should begin by contacting the regional office for the Florida Fish and Wildlife Conservation Commission for their part of the state, which is the Southwest Region office located in Lakeland. The state agency may be able to provide for one of its wildlife officers to personally become involved to help the communities devise and implement the best possible solutions.

They should also contact several experienced local wildlife trappers for their insights and expertise.

If possible, these experts should be encouraged to participate in the meetings of the boards of directors for the affected communities, as their experience-based guidance should prove to be invaluable. All the voices from homeowners and other interested parties should be heard and considered, and the boards of directors should then make informed and reasonable decisions based upon all the expert advice and community considerations.

With destructive wildlife invasions such as this, hoping the problem will just go away without taking proactive measures is not an option for homeowners associations. By consulting with experienced wildlife professionals, working together with neighboring communities, and considering all the pertinent options and concerns, associations and their boards of directors can move quickly to address, curtail and hopefully eliminate problematic and potentially dangerous wildlife invasions.

 

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(12-3-20)

Community Associations Face Challenging Financial Considerations for Continued Fiscal Wellbeing During Pandemic

By Roberto C. Blanch

As new spikes in Covid-19 cases continue to unfold and communities seek to maintain their mitigation measures, the financial trials and tribulations created by the pandemic in condominium association and HOA communities throughout the country become ever more apparent. The continued proliferation of Covid-19 cases underscores that while many may be letting their guard down and growing fatigued as to the measures to protect against the spread of the virus, community association stakeholders should remain proactive and forward-thinking in order to best position their associations for the consequences that may arise due to the pandemic.

Some community associations have begun to experience the burden resulting from lower collections rates caused by strains on the job market due to the pandemic. While the exact impact on the many types of community associations may be unknown, it has been suggested that delinquency rates could exponentially increase. In response to such expectations, we continue to suggest that community association boards and manager should continue considering the development of acceptable uniform payment plans that may be offered to those who have lost jobs and businesses.

Similarly, some have proposed that community associations should also think about postponing discretionary improvements to community amenities until late 2021 or even 2022.

Other factors, whether pandemic related or otherwise, are also expected to burden community association finances. For instance, boards of directors should take a close look at their current and projected insurance and maintenance costs. Some communities may require more coverage, and premiums may increase due to recent hurricane and wildfire claims being encountered by the insurance industry, and some claims that are expected to be presented due to the pandemic. In addition to insurance cost increases, increased cleaning and sanitation costs are probably here to stay.

As these financial issues continue to play out in communities across the country, boards of directors should be transparent with their members about their fiscal outlook and how they are addressing it. Some difficult decisions will probably need to be made regarding association expenses and amenities; as such, some level of community feedback could prove helpful as directors and managers navigate these unfamiliar waters.

Just as community residents are adjusting to life under the new normal, association directors and property managers will need to take a proactive approach to adjusting some of their financial management strategies and decisions. By holding these discussions in the open during their board meetings and making informed choices based on reason and the counsel of highly experienced professionals, boards of directors will be able to demonstrate they are ready and able to make all the tough calls that are necessary to navigate the difficult financial straits that lie ahead.

 

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(11-19-20)

CAI Civility Pledge Can Help Promote Harmonious, Respectful Living in Communities with Associations

By Laura M. Manning

The contentious presidential election and political divisiveness of the months leading up to it caused the Community Associations Institute, the leading organization which represents the interests of communities with associations, to issue an important reminder. In its blogs and emails, CAI recently appealed to communities to promote civility and unity by adopting the organization’s Community Association Civility Pledge, which is a commitment to the following principles:

• Each individual must be accountable for his or her own actions and words.

• All interactions in the community should be civil despite any differences of opinion on a particular issue.

• A vow to respect all points of view and strive to provide a reasonable opportunity for all to express their views openly.

• Residents are engaged and informed.

• Residents review CAI’s Rights and Responsibilities for Better Communities.

This commitment to civility, as well as a commitment to having more engaged and informed residents, helps to promote community harmony and safety. In these uncertain times, fueled by deep political and social divisions along with continued Covid-19 precautions and exhaustion, an association’s efforts to maintain a thriving community that benefits from responsible and effective leadership is extremely important.

To officially adopt CAI’s civility pledge, the organization recommends distributing the document throughout your community, and announcing and publicizing the board meeting when the adoption will be considered. During the meeting, boards should explain why it is important and beneficial for the community, review and discuss the merits of the principles, solicit input from homeowners, and hold a board vote to adopt a resolution endorsing the Community Association Civility Pledge.

Afterwards, the organization encourages communities to share the news of the adoption of the pledge with their residents and include it in every association meeting agenda. CAI would also like communities to complete and submit the civility pledge form on the organization’s website, which will add the communities to its state-by-state list of those that have taken the pledge.

Go to https://www.caionline.org/ to learn more about CAI’s Community Association Civility Pledge.

 

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(11-5-20)

Now is Time to Reverse Negative Stereotype of Community Associations for Rigid Enforcement, Collections

By Roberto C. Blanch

The GEICO Insurance TV commercials featuring an over-the-top HOA rules enforcer named Cynthia who takes a chainsaw to a noncompliant mailbox are hilariously satirical because they ring a bit too true. Community associations have a negative image in the minds of many for perceived over-reach in their enforcement measures. Unfortunately for associations, this stereotype is exacerbated by occasional media reports about HOAs and condominium associations being hit with numerous complaints from unit owners about their overly stringent enforcement and collections practices.

One such article, which appeared recently in the pages of the Star Tribune daily newspaper, focused on the disputes taking place between homeowners and their HOA’s board of directors at the Heritage Park community in north Minneapolis. It chronicles how the association regularly sends violation letters and collects fines for what some residents see as minor infractions, and it includes an example of a homeowner who was ordered to remove parts of her garden or the association would do so and bill her for the cost.

The article reported that the association has filed liens and foreclosure actions during the pandemic against homeowners who have failed to pay fees and other costs on time, and more than a dozen homeowners are now organizing and calling for changes.

It concludes by quoting a letter from the association stating it is legally obligated to collect assessments, and it must use liens and foreclosures to enforce its collections if homeowners fail to pay.

News reports such as this perpetuate the negative perception that associations are overly strict and too rigid in their enforcement and collections efforts. The truth is that rules enforcement and collections measures can be very challenging for associations to administer, and those that do it best have found that it takes a complete commitment to resolving disputes as reasonably and fairly as possible with absolute uniformity and impartiality in all their deliberations and decisions.

For rules violations and disciplinary actions, associations should always turn to a set procedure to find effective, reasonable and equitable resolutions. These protocols may include board and/or committee hearings in which witnesses and others representing both sides discuss and answer questions regarding all the pertinent issues and facts. After all these considerations are weighed carefully by an impartial panel, a final decision may be issued imposing a fine or issuing some other determination, such as a mandate for the violation to be remedied.

In any event, community association directors and management should base decisions on reason, and they should aim to find fair resolutions that meet their community’s standards for the uniform and unbiased application and enforcement of its rules and restrictions. Any resulting fines and suspensions should always be reasonable and uniform with those for similar infractions.

Given the massive toll that the coronavirus pandemic continues to take on the livelihoods and financial wellbeing of many community association residents, boards of directors should also now consider all their options for the collection of unpaid fees and assessments. Some are even borrowing a page from the playbook of previous economic downturns by sanctioning uniform payment plans to assist owners who become delinquent.

With the help of qualified legal counsel and financial professionals, associations should consider responding to the financial hardships caused by the pandemic by creating payment plans that are uniformly available to assist all the unit owners who become unemployed. They should also take a hard look at eliminating, deferring or reducing any planned nonessential renovation projects or expenses for the coming year.

As the economic and social impacts of the COVID-19 pandemic continue to unfold, community associations should seize this moment to reverse the stigma of over-reach in their enforcement and collections efforts. By developing and implementing a fair and effective process for violations enforcement and dispute resolution, and also considering temporary measures to address a looming collections crisis, associations can chip away at the negative stereotype behind the HOA Cynthia commercials and reinforce their positive image for safe and hassle-free living with easy access to exceptional amenities.

 

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(10-22-20)

New Post-Pandemic Normal Calls for Community Associations to Reexamine Restrictions on Working from Home

By Laura M. Manning

A recent survey by the Community Associations Institute found that 67 percent of respondents have noticed an increase in home-based businesses operating within their communities due to the COVID-19 pandemic. In the same survey, 83 percent of respondents reported that their community restricts home-based businesses, but 73 percent indicated that their association was now being more lenient when it came to approving residents’ requests to operate businesses such as daycares, school learning pods, hair stylists and others from their homes.

Most Florida community associations have restrictions prohibiting commercial business activities from being conducted in residents’ units. Some include blanket bans on commercial activity altogether, while others make a distinction between permissible and impermissible activities.

It makes sense for associations to regulate and restrict businesses from operating within their communities, especially for commercial activities that entail increased traffic and noise, but the upsurge in working from home in the new post-pandemic normal calls for HOAs and condominium associations to take a prudent approach that is guided by reason. Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large. Rather than attempting to ban all commercial activities in a community, the better option is to specifically delineate in the governing documents the types of activities that are not allowed.

Some of the activities that communities may wish to ban are those that entail significant vehicular traffic, including from clients as well as vendors and delivery vehicles. The stockpiling of chemicals or other flammable/hazardous materials in residences and garages is also a concern, as is the number of commercial vehicles being parked in driveways and parking areas in front of homes.

During these uncertain times, it is not advisable to litigate matters over individuals’ ability to work from home while adapting to the restrictions imposed by the global pandemic. Rather than attempting to impose severe restrictions on commercial activities, some of which are impossible to enforce given that many people are able to work very effectively and discretely from their home offices, boards of directors and property managers should consult with highly experienced and qualified community association legal counsel to adopt restrictions on home-based work and businesses that are reasonable and uniformly applied.

 

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(10-8-20)

CAI’s New Status Check Guide Provides Timely Info for Community Associations Reopening Closed Amenities

By Roberto C. Blanch

After months of repeated emergency orders prompting the closure of amenities for community associations, condominiums and HOAs, it comes as no surprise that many community association stakeholders are in search for guidance related to the safe operation of their community facilities, including pools, fitness centers, tennis courts, social rooms and other shared features. Thanks to the Community Associations Institute (CAI), the largest organization representing the interests of community associations in the world, a complimentary new guide is available to provide boards of directors and property managers with a great deal of timely and helpful information.

The new booklet, which is titled "Status Check: A Reopening Guide for Community Associations," offers aid and support for associations contending with the challenges of reopening all their facilities. The guidance for the common areas and amenities is organized by risk level or reopening phase, enabling them to be applied in accordance with the current conditions throughout the country.

The guide and other resources in CAI’s interactive Coronavirus Resource Page also offer helpful templates that may be modified for use by individual communities. These include:

• A sample letter template to update residents about common areas and amenities.

• Common area signage templates.

• Guidelines for community association common areas, amenities, and operations.

Our firm’s other community association attorneys and I have been helping many associations to develop and deploy the best practices and protocols for the closures and reopening of their amenities and common areas. While CAI’s booklet is not intended to be the sole source to be used by community associations with regard to navigating the reopening and safe operations of their facilities, it does serve as a useful starting point from which associations and their managers may begin their analysis of how best to proceed with such efforts. The booklet contains provisos suggesting that association directors and managers should be mindful of considerations such as local orders or laws, as well as other factors, such as infection rates and specific facility-related concerns regarding the association’s amenities, when making decisions in the reopening process. Accordingly, we strongly advise all boards of directors and property managers to seek the guidance of highly qualified and experienced community association legal counsel regarding all the issues and questions specific to their communities in connection with the reopening process.

Many of our firm’s association attorneys are proud members and participants in CAI, and we salute the organization for providing this guide and other helpful resources for associations to meet the challenges posed by the new post-COVID 19 normal. For more information about the impact of COVID-19 and community associations, visit CAI’s Coronavirus Resources page at www.caionline.org/pages/coronavirus.aspx, which also includes a link to the new Status Check reopening guide.

 

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(9-24-20)

National Survey Finds Homeowners Overwhelmingly Satisfied with Their Community Associations

The new post-pandemic normal includes many changes that affect how communities operate, and a recent national survey conducted by the Foundation for Community Association Research serves as a timely reminder that Americans are overwhelmingly satisfied with their HOAs and condominium associations. The biennial nationwide survey conducted by Zogby Analytics is aimed at providing a better understanding of the experience of homeowners who live in communities with associations.

The 2020 homeowner satisfaction survey reveals that nearly 90 percent of those who live in communities with associations rate their overall experience as either very good (40 percent), good (30 percent) or neutral (19 percent). Nearly three-quarters of the respondents have attended board meetings, 71 percent believe their community’s rules help to protect and enhance property values, and 62 percent say they are paying the correct amount in assessments.

The respondents noted such association benefits as cleanliness and attractiveness, maintenance-free living, neighborhood safety, and maintaining property values as being among their most important advantages. The results for 2020 even saw an increase in satisfaction and appreciation of community association rules (four percent) and the role of the board of directors (five percent) over those of the 2018 survey.

The changes brought under the new normal in response to the COVID-19 pandemic have impacted practically every aspect of modern life, and community associations have been no exception. Associations have been forced to implement and enforce difficult rules and restrictions for maintaining social distancing and the wearing of face coverings, and close or restrict the use of shared community amenities such as pools, fitness centers and tennis courts in order to maintain safety and avoid the spread of the highly contagious and deadly disease.

Homeowner reactions and perceptions toward these measures have been polarizing in many communities, with some residents perceiving them as necessary precautions while others finding them to be too extreme. It will be interesting to see how these challenging changes to community operations will impact the results of the 2022 survey, but hopefully by then the nearly 75 million Americans who reside in communities with associations will have come to realize that the post-pandemic world has changed, and associations have helped to pave the way for safe and secure community living in the new normal.

The complete summary of the survey’s results is available at: https://foundation.caionline.org/wp-content/uploads/2020/07/2020HomeSatisfactionSurveyResults07.22.20final.pdf.

 

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(9-9-20)

Epic Dispute Over Driveway Design at Boynton Beach HOA Makes Local Headlines

By Laura M. Manning

Our firm’s other community association attorneys and I have all seen our fair share of disputes arising from unapproved property improvements in South Florida HOA communities over the years. However, the saga involving a diamond design in a homeowner’s driveway at the Equus community just west of Boynton Beach appears to be exceptionally combative, so much so that it drew the attention of the Palm Beach Post.

According to a recent article from the newspaper, the HOA has been trying to have homeowner Barry Rosenthal remove the decorative red diamond design for more than three years. Both parties appear to be very deeply entrenched in their positions.

In its lawsuit, the HOA claims the driveway design "was not in conformity with other approved driveway designs throughout the community." Rosenthal had it installed as part of his new driveway project in 2017 without obtaining the HOA’s prior approval, and he was subsequently fined $1,000 and lost his usage rights to the community’s amenities, which include tennis courts and a fitness center.

In the article, Rosenthal states that his case is "all about selective enforcement." He claims another resident has almost their entire driveway paved over with larger diamonds, and the HOA has done nothing to them.

"There are a lot of cliques here and if you are in the right clique, you get a free pass," he is quoted in the article. "An arbitrator told us at mediation that he never saw such selective enforcement. This is wrong. We have not yet had a trial. I can’t wait to get to court."

The HOA’s attorney states that Rosenthal knew what the rules and regulations were, and he needed to get association’s prior approval for the design. He chose not to, and now he has refused to remove the offending diamond shape.

The article also correctly notes that the party which ultimately prevails at trial will most likely recover their legal fees, which could run into the tens of thousands of dollars for a case that has already taken more than three years of litigation and mediation.

Cases such as these in which a rather simple dispute snowballs into an epic fracas between a homeowner and their community association over an unapproved property improvement are typically unfortunate for all the parties involved. Associations should always turn to a set procedure to find effective, reasonable and equitable resolutions for all such disputes. These protocols will typically include board and/or committee hearings in which experts from both sides discuss and answer questions regarding all the pertinent building code and aesthetics issues. After all these considerations are weighed carefully by an impartial panel, its final decision should be based on reason and aimed at finding a fair resolution that meets the community’s standards for the uniform and unbiased application and enforcement of its rules and restrictions.

Employing such dispute resolution procedures will not prevent all such skirmishes from ending up in court. However, for those cases in which litigation proves to be unavoidable, associations are bound to fare much better in the proceedings by being able to demonstrate that they conducted the entire process as reasonably and fairly as possible in a good-faith effort to find an acceptable resolution.

 

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(August 26, 2020)

Governor DeSantis Signs 

Emotional Support Animal Bill Into Law

By Laura M. Manning

Community associations in Florida contending with fraudulent emotional support animal (ESA) requests may get some relief. Governor DeSantis signed SB 1084 into law on June 23, 2020. The new law prohibits discrimination from housing providers to someone requiring an ESA, but also prohibits health care practitioners from providing information regarding a person’s need for an emotional support animal without having personal knowledge of the person’s need for the animal.

The law, which took effect on July 1, 2020, requires a patient to establish the need for an ESA by delivering to the housing provider supporting information from a licensed healthcare practitioner, a telehealth provider, or other similarly licensed practitioner, including an out-of-state practitioner who has provided in-person care or services to the patient on at least one occasion. Housing providers may establish a routine method for receiving and processing ESA requests. However, they cannot require the use of any specific forms, deny a request solely because the resident did not follow their methods, or request information that discloses the diagnosis or severity of the resident’s disability.

The law also makes the individual requiring the ESA liable for any damages done to the premises by the ESA. Finally, a person who falsifies information or written documentation as having a disability requiring the need for an ESA commits a misdemeanor of the second degree, punishable by law.

Our firm’s attorneys write regularly about timely and important matters for Florida community associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage associations directors, members and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

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(April 20, 2020 and August 12, 2020)

COVID-19 Collections Strategies for Community Associations

By Laura M. Manning Hudson

While the full impact the novel coronavirus (COVID-19) will have on the economy remains uncertain, community associations are likely beginning to feel the financial crunch created by unpaid assessments — if they haven’t already. As unemployment rates continue to increase, and businesses struggle to stay afloat, this crisis will undoubtedly impact owners’ ability to pay. Given these hardships, many boards of directors are already considering waiving assessments in order to offer some comfort to their residents. But by implementing such a drastic initiative, would boards of directors do their association more harm than good?

Upon being elected, boards of directors have a fiduciary responsibility that requires them to place the welfare of the association above their own interests. This responsibility includes a duty of care, which imposes on boards a legal obligation to collect assessments and fund reserves. As a result, directors not only have a responsibility to implement a collection strategy, but they are also tasked with enforcing those policies uniformly. Therefore, it is not recommended that boards completely halt the collection of assessments or the enforcement of the association’s collections policy, as such suspension would not only result in a breach of the duty of care required but could potentially subject the association to significant financial distress. Instead, associations should find other ways to alleviate some of the financial pressure being felt by property owners.

Depending on the association’s governing documents, the association may have the ability to assess late charges and interest against delinquent owners. Instead of refraining from collecting assessments from owners, associations might consider waiving late fees and interest instead. Another recourse an association can use to help struggling owners is to work with them by offering a payment plan option before their unpaid assessments get out of control. The payment plan should serve the interest of both the delinquent owner and the association and should carve out clear terms such as the total amount due, the amount of the monthly payment, the deadline, and the consequences for breaching the agreement.

Associations should also consider trimming unnecessary spending. For example, there may be projects that are not urgent or were planned solely to improve the residents’ lifestyles or increase property values, such as redoing the landscaping. Projects like these can be costly, and temporarily postponing them can assist associations by putting them in a favorable position when bad debt starts to affect the community.

Keep in mind that when community associations have delinquencies that cause a strain on their operational accounts, they might find themselves forced to cut back on essential services, such as pool maintenance and regular landscaping. If that happens, some associations will be obliged to specially assess their paying members to make up for the deficit and be able to continue to maintain their community properly. If bad debt begins to become a real issue, associations may want to obtain a loan with their bank. However, associations should also be wary of predatory lenders or "deals" that seem too good to be true.

More so than ever, it is vital that boards of directors continue to diligently serve their member’s and community’s needs, while still supporting owners who are experiencing financial hardships. We encourage community associations to reach out to us to discuss different options, as solutions to these issues are not "one size fits all" and should be personalized to your community.

 

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(April 6, 2020 & July 29, 2020)

Reducing the Spread of COVID-19 in Your Condo Community

By Laura M. Manning-Hudson

Protecting the residents and management staff should be a priority for condominium association board members and property managers during the novel coronavirus (COVID-19) outbreak. Most management companies have already implemented their business continuity plan to ensure that there are no disruptions in services provided by associations and management. While it is important for management to be prepared to deal with the possible impact of this pandemic, it is also imperative that board members stay involved and consider having a preparedness plan in place for the association at large.

The first step a board of directors should take — and one that is often overlooked — is to designate an individual to stay informed on governmental updates by consulting reliable resources and signing up to receive alerts. Government and health department websites dedicated to providing COVID-19 updates, such as the Centers for Disease Control website, are typically the most reliable sources of information. In this ever-changing environment, guidelines and orders issued by local and state governments are continually updated, and it is important to ensure that the information which is being relied upon for vital decisions is the latest and most accurate available.

The next order of business is to have a clear communications plan in place. Effective communication allows both residents and management staff to stay informed about coronavirus updates, safety practices, amenity closures, and possible infections in the building. Boards should ensure that rosters are updated with the most current contact information for residents and building staff. They should also consider contracting with a third-party platform that enables secure communication between owners and management via email, texts or an app, should these capabilities not already be in use.

It is also important to understand that everyone has a role in the well-being and safety of their community. Therefore, it is essential to have management work directly with the board of directors while planning and modifying operations in response to COVID-19. Part of the plan should include: how they intend to handle a case where a resident or staff member becomes infected, how the message will be delivered to residents, and what safety precautions will be implemented to reduce the spread to others. These measures should be discussed with the association’s attorney to make sure the association is not running afoul of any laws or exposing itself to discrimination and/or violation of privacy claims.

Finally, and most importantly, staying on top of cleaning of supplies and procedures — and updating them as needed — will likely provide the highest return on resident health. Increasing the cleaning and sanitation of high-traffic areas and items that are touched frequently such as door handles and elevator buttons is essential. Shared workspaces such as valet stations and front desks should be cleaned regularly to avoid the spread of germs, and hand sanitizer dispensers should be placed throughout the common areas. A minimum of two months of essential and consumable supplies should be kept on hand, and cleaning supplies should be regularly restocked. A visit to authoritative health websites can provide guidelines for best practices and should be consulted.

By following the latest updates and implementing the recommended policies and protocols, condominium associations will be able to help prevent the spread of the deadly COVID-19 in their communities.

 

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(3-25-20)

How Should Community Associations Handle Meetings and Common Area Use Amid Coronavirus Outbreak?

By Roberto C. Blanch

The coronavirus pandemic has created a lot of uncertainty for community associations throughout Florida, especially concerning meetings and amenity use. Management professionals and board members are left struggling between protecting their residents by taking measures to limit the spread of the virus and continuing to conduct business as usual.

Of course, many community association stakeholders have raised concerns about the COVID-19 outbreak and the impact that it may have on our communities. In an effort to be informed upon the virus, directors and managers are urged to monitor the recommendations and guidelines published by the CDC and other qualified health professionals as the primary source of information and guidance. As we navigate these unchartered waters together, we also encourage our clients to stay calm and take rational courses of action to safeguard their communities and address situations properly while protecting their association from a potential claim.

As the CDC continues to encourage "social distancing," many associations are left wondering whether they should be moving forward with scheduled meetings. Board members and property managers should evaluate the importance of the action items being discussed or voted upon before making any determination on cancellations. Boards that are concerned about having in-person meetings should consider holding virtual meetings in conjunction with or in place of in-person gatherings, as applicable statutes for both Florida condominiums and HOAs provide the ability for directors to attend and participate in meetings by teleconference. Additionally, if communities are in need of membership votes on given matters, electronic voting may be rolled out in conjunction with the hosting of a members’ meeting on a web-based or virtual platform.

Social gatherings in clubhouses and recreational facilities are also a cause of concern. The thought of limiting the number of guests that residents may invite to the community or community-operated facilities – or trying to impose policies such as checking temperatures prior to allowing entry to the community – must be considered very carefully, as seemingly logical decisions to protect health and welfare within a community may infringe upon the legal rights of its residents. We further strongly recommended that association counsel be contacted prior to the implementation of any such restrictions or conditions to determine whether they may be implemented and, if so, the best manner to do so.

Overly restricting the use of common elements is something that should be carefully evaluated. Limiting the use of gyms, pools, meeting rooms and other amenities should be left to the discretion of the board of directors. Currently, the Florida Department of Health’s 24-hour hotline (1-866-779-6121) is impartial to the restriction of the use of community amenities.

Associations – especially those considering leaving their facilities open – should consider reaching out to their insurance providers to determine if there is any exclusion within their policy regarding bacterial and virus clean up or whether their carrier has issued any recommendations for the use of the common facilities and common areas. Memos should also be distributed to residents reminding them of sanitary procedures that should be followed after use of common facilities and cautioning them about the potential risk from using public spaces and equipment.

For those boards that decide to close all amenities, note that there may be a legal risk and potential challenge from residents involved with taking this action. Though Governor DeSantis declared a state of emergency, it is unclear as to whether boards can utilize the emergency powers provided to them in Chapters 718, 719 and 720 of the Florida Statutes to justify these closures. Some have suggested that those statutory emergency powers were enacted to assist in dealing with post-hurricane emergencies and resulting property damage, while others have suggested that they may extend to the types of "damages" that may result from the spread of the virus within the community. Regardless of what the board of directors decides, we encourage that all decisions be addressed at duly noticed board meetings, and we recommend that boards maintain reliable documentation from emergency management officials or licensed professionals to support their decisions.

Finally, while it may seem obvious, we advise that associations take every step possible to keep high trafficked areas clean and place hand sanitizers, to the extent practical, in lobbies. Further, steps should be taken to ensure that public restrooms, doorknobs, elevators, front desks, and recreational facilities are cleaned frequently. Management professionals and other personnel that are feeling ill should be discouraged from reporting to work. Lastly, emergency contact information should be updated for all residents and staff, specifically for those who might be particularly at risk.

We understand that there is a great deal of confusion and concern about what course of action to be taken in light of the circumstances. With that in mind, association directors and managers are encouraged to seek the legal opinion of their community association lawyers before making decisions some may consider to be risky, such as prohibiting social gatherings and closing gyms and other recreational amenities. As we all now hope, the coronavirus will move on quickly and the impact to public health will be limited as a result of the precautionary measures being implemented.

 

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(3-11-20)

HUD Issues New Guidance for Assistance Animals in Housing

By Laura M. Manning

Changes in public perceptions and levels of awareness of the issues surrounding emotional support animals have created a mandate for new state laws and federal policies. Earlier this year I wrote in this column about new measures being considered by the Florida Legislature as well as the U.S. Department of Housing and Urban Development. HUD has now released its official guidance for assistance animal requests and the responses to such requests by housing providers under the Fair Housing Act.

The federal housing agency reported that complaints concerning denials of reasonable accommodations for assistance animals have been growing significantly, and they now represent one of the most common types of FHA complaints that HUD receives.

The new guidance is intended to serve as a tool for housing providers and those with disabilities. It covers many of the best practices for providers addressing requests for reasonable accommodations for assistance animals.

The guidance should help to make it easier for housing providers and individuals requesting an accommodation to gain a good understanding of the applicable laws. For requests for emotional support animals in which the underlying disability may not be readily observable, HUD states that housing providers may request information regarding both the disability and the disability-related need for the animal, but they are not entitled to know an individual’s diagnosis.

The agency’s guidance also addresses websites that sell certificates, registrations and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee. The FHA enables housing providers to request reliable documentation when an individual requesting a reasonable accommodation has a disability-related need for an assistance animal, and the HUD guidance clarifies that documentation from such websites is insufficient to reliably establish that an individual has a non-observable disability or disability-related need.

HUD also notes that reliable documentation would, for example, come from healthcare providers who have personal knowledge of a patient and who confirm their disability and need for an animal.

The new guidance also clarifies the types of animals that may provide emotional support or other assistance. It makes specific distinctions between animals that are typically found in households, such as dogs and cats, and unique animals that are not typically found in homes, such as livestock. Accordingly, those who are seeking a reasonable accommodation for a unique animal will face a substantial burden in demonstrating how it directly meets a disability-related need.

Legitimate requests for ESAs by disabled residents should be accommodated and protected by state and federal laws, but this new HUD guidance as well as a bill that is currently being considered by the Florida Legislature represent important measures to address how requests are verified and fraud may be prevented.

Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to submit their email address in the subscription box in the blog in order to automatically receive all our future articles.

 

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(2-26-20)

Property Manager Steals Hundreds of Thousands of Dollars from Two South Florida  Condominium Associations

By Roberto C. Blanch

As documented in a recent report in the Miami Herald, the property manager of two Sunny Isles Beach condominium towers has been arrested for stealing hundreds of thousands of dollars from the associations for the properties.

Property manager Georgina Pineda was booked into a Miami-Dade County jail recently, and apparently it wasn’t her first brush with the law involving association theft and fraud. This time, court documents allege she stole hundreds of thousands of dollars from the Eden Roc Condos, which she had managed since 2017. The documents indicate that much of the money went to feed her gambling habit at the Miccosukee casino.

According to Sunny Isles police, Pineda had access to the condo association’s debit card. She was supposed to use it only for small expenditures for the community, but when the association board demanded a full audit she "continually made excuses as to why she was not providing accounting reports."

The arrest report also states that when Pineda finally provided a spreadsheet, it was missing numerous transactions — including withdrawals at the Miccosukee casino in West Miami-Dade. In addition, she was regularly transferring association funds into her own independent business account.

When she was confronted by the Eden Roc association president with the fact that hundreds of thousands of dollars were missing from the association’s coffers, Pineda admitted that she had a serious gambling problem and asked for time to pay the money back.

Similarly, Pineda also stands accused of stealing between $150,000 and $400,000 from the King David Condominium, which is another Sunny Isles Beach community she managed.

It appears that the manager of these two condominium properties was able to syphon the funds from the associations’ bank accounts via the use of debit cards. In fact, as my colleague Laura Manning-Hudson wrote in her 2017 post on our firm’s blog at www.FloridaHOALawyerBlog.com, the Florida Legislature has adopted legislation prohibiting association officers, directors and employees from using debit cards issued in the name of the association. This legislation was aimed at protecting against dishonest individuals having access to cash from large association bank accounts. However, while the restriction on the use of debit cards limits direct access to cash that condominium associations may have in their accounts, associations may still obtain and use credit cards issued in the association’s name.

The foregoing cases also demonstrate that while they have been prohibited for condominium associations, the use of debit cards by Florida associations may continue to some extent. Given the susceptibility to fraud and abuse presented by debit cards, condominium association directors should avoid using them altogether. Instead, while not guaranteed to eliminate fraud or misuse, associations should limit themselves to using only credit cards on a very restricted basis.

As Laura recommended in 2017, if an association’s directors insist on having a credit card issued for the association, we suggest allowing only one card to be issued, keeping a low limit on the card, paying it in full every month, and implementing measures to account for verification of its use on a periodic basis between statement periods. For instance, associations should conduct monthly reviews of all bank and credit card statements by at least two people, ideally including both a board member and management staff. There should be an annual audit by experienced and reputable accountants to provide a careful review and independent certification of the validity of all financial records, and associations should also consult with highly experienced accountants and attorneys to discuss and implement other protocols to help avoid what occurred at these South Florida condo communities.

The changes enacted under Florida’s 2017 condo fraud laws were aimed at giving law enforcement a mandate to take cases of association fraud extremely seriously and allocate all the available resources to prosecute them. Florida associations must make effective use of the proper safeguards, and those that do become victimized are now better equipped to engage law enforcement.

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(2-12-20)

Compulsive Vulture,

Alligator Feeder Settles for $53K with HOA

By Laura M. Manning

Readers of this column may recall my recent article about a resident of the Ibis Golf and Country Club community in western Palm Beach County who was creating an incredibly dangerous and destructive situation by feeding extraordinary amounts of food to vultures, alligators and other wildlife behind her home. On Wednesday, Jan. 15, the homeowner agreed to pay $53,000 to settle a lawsuit brought by her community’s association.

In addition to the payment for the association’s fees and fines that is due by Feb. 14, Irma Acosta Arya was also permanently enjoined from any further feedings, meaning the court has issued an injunction against her prohibiting any future feedings under severe criminal and civil penalties.

According to a follow-up report on the case in the Palm Beach Post, the payment and injunction represent a great relief to the residents of the gated golf community, which borders a nature preserve in western Palm Beach County.

The suit alleged that Acosta Arya’s constant feedings of large quantities of food since 2016 attracted highly destructive flocks of vultures, which would vomit and defecate all over the community and neighboring properties, along with raccoons, alligators and a bobcat. The judge initially issued a temporary injunction to prevent any further feedings, and he found Acosta Arya in contempt of court in December for violating the injunction after the association presented photos allegedly showing her feeding animals behind her house in recent months.

The newspaper’s reports also state that her neighbors have seen her feeding finger sandwiches and raw chicken to the wildlife. They also say they have found many large empty bags of dog food in a recycling bin near her house, but she does not have a dog.

Last year, the feedings led to huge flocks of hundreds of large black vultures, which would break in to neighbors’ screened pool enclosures and destroy their patio furniture and barbeque grills. The feces and vomit from the vultures also created an unbearable stench.

The association for this community should be commended for involving law enforcement early in the process by alerting the Florida Fish and Wildlife Conservation Commission, which issued fines against Acosta Arya and setup night-vision cameras to capture images of her nocturnal feedings of an alligator last year. The association also sought and secured an injunction.

Acosta Arya’s violation of the court’s temporary injunction was surely instrumental in enabling the association to secure the quick settlement and permanent injunction. Hopefully, by moving quickly on both the law enforcement and civil fronts, the community’s residents will now rest easy without fear of any further wildlife feedings by their neighbor.

Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to submit their email address in the subscription box in the blog in order to automatically receive all our future articles.

 

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(1-29-20)

Considerations for Practical Parking Solutions in Congested Communities

By Roberto C. Blanch

The topic of parking within community associations is oftentimes the source of much consternation. The limitation of parking spaces in HOA and condominium association communities – whether real or perceived – may result in volatile and contentious situations for community association stakeholders. Homeowners, property managers and directors alike are confronted with concerns about the manner by which vehicles are parked; the number of vehicles residents choose to park within communities; the number of guests an owner may have at one time parking their vehicles within a community; the duration which vehicles may be parked; the types, appearance and size of vehicles parked within a community, and the locations in which residents or guests choose to park vehicles within a community.

In order to address these concerns, community association directors typically adopt rules and restrictions governing how, when, where, how many and what types of vehicles may be parked in the community. However, unit owners can become very frustrated by such rules and restrictions, especially if they are perceived to be overzealous or ill-intended.

Board members and property managers should take every precaution to strike a balance between the rules and restrictions they impose upon parking within the community and the legitimate concerns they intend to address by the imposition of such rules.

Some associations contending with parking issues and rules may find that the best approach is to try to find a compromise together with the owners that would meet with the most widespread approval. Communities may also opt to avoid focusing on member fines or suspensions, and they may consider waiving outstanding fines and suspensions for certain rules that have come into question. Owners who challenge fines resulting from parking rule violations will often argue that these fees should not be considered a good revenue source for the association, but supporters typically contend that the rules become ineffective if the association is unable to impose fines or suspensions for violators.

Some communities have chosen to implement concerted efforts at increasing communications to owners and residents regarding the parking concerns and the resulting need to implement restrictions. These communities have been motivated by the hopes that an open dialogue and explanations as to the reasons and goals behind the rules may increase compliance. For instance, if the issues involve on-street parking, it may be prudent to discuss the potential problems that may be caused by narrow streets, which could lead to accidents or a lack of access for emergency vehicles that may expose an association to potential liabilities.

In addition to the implementation of restrictions governing existing parking spaces within a community, directors and management may also give consideration to the use of overflow areas for use as parking, including the possibility of using or converting areas that are owned or created by the association for added parking. For instance, this may be a possible approach in sprawling communities comprised of single-family homes in which it may be best to find and create as many such areas as possible for overflow parking.

As it relates to condominiums with parking difficulties that may be due to inadequate garages and lots, association boards could explore any possibilities for agreements with nearby properties or garages with excess parking that could be available for use by residents and guests.

By working together with the owners and residents while maintaining an open mind about every parking rule and potential solution to insufficient parking, association boards can find the best approach for their specific needs and issues. Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

 

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(1-15-20)

Community Associations Official Records Require Effective Document Management, Storage

By Laura M. Manning

Community associations in Florida are required to provide owners with access to the association’s official records within 10 working days after receiving a written request from a unit owner or the owner’s authorized representative. Given such a statutory mandate, it is not so uncommon for associations to receive requests to inspect financial and accounting records, contracts, certified copies of plans, permits and warranties provided by the developer or any other contractor, as well as copies of the declaration, articles of incorporation, bylaws, rules and regulations, and insurance policies.

Associations should be prepared to respond to requests to inspect official records by utilizing strong document management and retention policies. For large associations, records should be cataloged and preserved using third-party cloud services for offsite storage and backup. These systems can be set to automatically backup and store association records at regular intervals.

One of the simplest ways for associations to keep a thorough and searchable archive of important email communications with property management, attorneys, insurance brokers and others is to utilize a single association board email address as the sender and/or copied recipient of all such messages.

In addition to the digital document archives, associations should also maintain an organized and up-to-date paper filing system. Paper still serves a practical purpose for the provision of obtaining quick copies of important documents for immediate perusal, and it can also be an emergency backup system against any potentially lost or damaged electronic data.

Paper files and cabinets should be organized using a basic indexing system, and access to the files should be limited to only a few individuals. Confidential legal and personnel files should be kept separately and securely locked away. File retention and disposal policies should require that no files will be disposed without prior board approval.

Association directors and property managers with any questions or concerns regarding the maintaining of official records and their inspection by members should always consult with highly qualified and experienced community association attorneys.

Our firm’s community association attorneys write about important issues for Florida associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

 

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(1-1-20)

Considerations for Practical Parking Solutions in Congested Communities

By Roberto C. Blanch

The topic of parking within community associations is oftentimes the source of much consternation. The limitation of parking spaces in HOA and condominium association communities – whether real or perceived – may result in volatile and contentious situations for community association stakeholders. Homeowners, property managers and directors alike are confronted with concerns about the manner by which vehicles are parked; the number of vehicles residents choose to park within communities; the number of guests an owner may have at one time parking their vehicles within a community; the duration which vehicles may be parked; the types, appearance and size of vehicles parked within a community, and the locations in which residents or guests choose to park vehicles within a community.

In order to address these concerns, community association directors typically adopt rules and restrictions governing how, when, where, how many and what types of vehicles may be parked in the community. However, unit owners can become very frustrated by such rules and restrictions, especially if they are perceived to be overzealous or ill-intended.

Board members and property managers should take every precaution to strike a balance between the rules and restrictions they impose upon parking within the community and the legitimate concerns they intend to address by the imposition of such rules.

Some associations contending with parking issues and rules may find that the best approach is to try to find a compromise together with the owners that would meet with the most widespread approval. Communities may also opt to avoid focusing on member fines or suspensions, and they may consider waiving outstanding fines and suspensions for certain rules that have come into question. Owners who challenge fines resulting from parking rule violations will often argue that these fees should not be considered a good revenue source for the association, but supporters typically contend that the rules become ineffective if the association is unable to impose fines or suspensions for violators.

Some communities have chosen to implement concerted efforts at increasing communications to owners and residents regarding the parking concerns and the resulting need to implement restrictions. These communities have been motivated by the hopes that an open dialogue and explanations as to the reasons and goals behind the rules may increase compliance. For instance, if the issues involve on-street parking, it may be prudent to discuss the potential problems that may be caused by narrow streets, which could lead to accidents or a lack of access for emergency vehicles that may expose an association to potential liabilities.

In addition to the implementation of restrictions governing existing parking spaces within a community, directors and management may also give consideration to the use of overflow areas for use as parking, including the possibility of using or converting areas that are owned or created by the association for added parking. For instance, this may be a possible approach in sprawling communities comprised of single-family homes in which it may be best to find and create as many such areas as possible for overflow parking.

As it relates to condominiums with parking difficulties that may be due to inadequate garages and lots, association boards could explore any possibilities for agreements with nearby properties or garages with excess parking that could be available for use by residents and guests.

By working together with the owners and residents while maintaining an open mind about every parking rule and potential solution to insufficient parking, association boards can find the best approach for their specific needs and issues. Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

 

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(12-18-19)

Community Associations Official Records Require Effective Document Management, Storage

By Laura M. Manning

Community associations in Florida are required to provide owners with access to the association’s official records within 10 working days after receiving a written request from a unit owner or the owner’s authorized representative. Given such a statutory mandate, it is not so uncommon for associations to receive requests to inspect financial and accounting records, contracts, certified copies of plans, permits and warranties provided by the developer or any other contractor, as well as copies of the declaration, articles of incorporation, bylaws, rules and regulations, and insurance policies.

Associations should be prepared to respond to requests to inspect official records by utilizing strong document management and retention policies. For large associations, records should be cataloged and preserved using third-party cloud services for offsite storage and backup. These systems can be set to automatically backup and store association records at regular intervals.

One of the simplest ways for associations to keep a thorough and searchable archive of important email communications with property management, attorneys, insurance brokers and others is to utilize a single association board email address as the sender and/or copied recipient of all such messages.

In addition to the digital document archives, associations should also maintain an organized and up-to-date paper filing system. Paper still serves a practical purpose for the provision of obtaining quick copies of important documents for immediate perusal, and it can also be an emergency backup system against any potentially lost or damaged electronic data.

Paper files and cabinets should be organized using a basic indexing system, and access to the files should be limited to only a few individuals. Confidential legal and personnel files should be kept separately and securely locked away. File retention and disposal policies should require that no files will be disposed without prior board approval.

Association directors and property managers with any questions or concerns regarding the maintaining of official records and their inspection by members should always consult with highly qualified and experienced community association attorneys.

Our firm’s community association attorneys write about important issues for Florida associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

 

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(12-4-19)

CAI’s New Public Policy on Assistance Animals Offers Guiding Principles for Associations, Legislators

By Roberto C. Blanch

The Community Associations Institute, the largest organization representing the interests of communities with associations, recently issued a new public policy titled "Assistance Animals and Pets in Community Associations." The new policy recommendations, which were adopted by the organization’s Board of Trustees, serve as excellent guiding principles for associations and lawmakers on pet restrictions and assistance animal policies.

The policy recognizes the rights of residential community associations to regulate and adopt rules pertaining to pets and assistance animals, but it notes that such rules must guarantee the rights of individuals with disabilities to receive the assistance they need as mandated by state and federal laws. It will be used by the organization and its legislative action committees around the country to support legislation allowing associations to request documentation that verifies the need to accommodate for an assistance animal, and which imposes penalties for fraudulent requests for service or emotional support animals.

Assistance animals are recognized as deserving of reasonable accommodations for the qualified disabled under the federal Fair Housing Act. Assistance animals are not considered pets, according to the U.S. Department of Housing and Urban Development, which oversees the Fair Housing Act and investigates claims of housing discrimination.

Some have speculated that some individuals in communities with pet restrictions have fraudulently claimed to require "emotional support" dogs, cats, birds, pigs, etc. Associations have responded by requesting information regarding the nature of the disability that is being claimed so that they may make meaningful evaluations as to whether the requested accommodation is reasonable. The meaningful review may authorize the association to inquire about how the disability affects major life activities and how maintaining the animal will assist the requestor in fulfilling these activities.

Associations may ask individuals requesting an emotional support animal to provide documentation from a physician, psychiatrist, social worker, or other qualified professional indicating that the animal provides support and alleviates one or more of the identified symptoms or effects of an existing disability. Such documentation is deemed to be sufficient if it establishes that an individual has a disability and the animal in question will provide some type of disability-related assistance or support.

Florida is now among the states that has established criminal penalties for service animal request misrepresentations. State law now holds that an individual "who knowingly and willfully misrepresents herself or himself, through conduct or verbal or written notice, as using a service animal and being qualified to use a service animal or as a trainer of a service animal commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083 and must perform 30 hours of community service for an organization that serves individuals with disabilities, or for another entity or organization at the discretion of the court."

Community association directors and property managers in Florida should review CAI’s new public policy on assistance animals and pets, which can be found at https://bit.ly/2CpX9tK.

Our firm’s community association attorneys write about timely and important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog to automatically receive all of our future article.

 

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(11-19-20)

Homeowner Feeding Wildlife Leads to Black Vultures Overwhelming Parts of West Palm Beach Community

By Laura M. Manning

Recent reports in the Palm Beach Post and on WPBF 25 News chronicled the devastating damage that is being caused to homes in the Ibis Golf and Country Club community in West Palm Beach by hundreds of black vultures. The large birds are being attracted by a homeowner who is feeding the wildlife with massive amounts of food.

The vultures fly in for their regular feedings and then stay to roost on and around the surrounding houses. Hundreds of the birds have torn apart screened enclosures and made themselves at home in neighboring pools and patios, and they have even dented residents’ vehicles with their beaks.

"The vultures just vomit everywhere," says a homeowner in the newspaper’s article. "Defecating and vomiting. It’s just gross."

Another homeowner who lives next door to the lady who feeds the birds says that after the vultures tore into her pool enclosure, they became trapped and began attacking each other. "Imagine 20 large vultures trapped, biting each other — and they can bite through bones," she said. "They would bang against my windows running away from a bird that was attacking them. Blood was everywhere. It was a vile, vicious, traumatic event."

The homeowners say that the neighbor feeding the wildlife puts out four 20-pound bags of dog food a couple of times a week in addition to occasional roasted chickens and trays of sandwiches.

According to the president of the Ibis Property Owners Association, the POA and Florida Fish and Wildlife Commission have warned the homeowner to stop. In fact, Fish and Wildlife officers pulled an adult alligator out of the area as a result of her feedings, but she still has not stopped.

"We called Fish and Wildlife in to give the lady a warning. We also issued a violation notice. She has to appear in front of our Rules and Compliance Committee and will get a fine," said the association president in the newspaper article. He also notes that she is to receive a cease and desist order from the association’s attorney, and they are also pursuing a citation from the Fish and Wildlife Commission.

The association for the community did the right thing by contacting and involving law enforcement with the Fish and Wildlife Commission officers. In cases such as this with recalcitrant homeowners who create an unbearable nuisance for their neighbors, associations need to look to both their own enforcement mechanisms as well as law enforcement, as appropriate, in order to remedy the situation as quickly as possible. They also need to move quickly with the filing of a lawsuit seeking damages as well as emergency injunctive relief to force owners to cease their offending activities.

Our firm’s community association attorneys write about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog to automatically receive all our future articles.

 

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(11-6-19)

Association Rule Blamed for Tragic Death of Resident Sends Message to Communities Nationwide

By Roberto C. Blanch

A recent editorial by the South Jersey Times focused on the tragic and untimely death of a 25-year-old HOA community resident that is being blamed on an overly restrictive association rule. Tori Gerstenacker was struck and killed by a motorist while crossing Route 70 in Evesham Township. She parked her pick-up truck at a shopping center across the busy highway because the HOA for the Delancey Place community where she lived has a rule against parking commercial vehicles.

According to her roommate, Gerstenacker regularly parked at the strip mall because the homeowners association warned her that it would tow her truck if it was parked in the community. The roommate says she drove a Ford F-150 pickup truck similar to those several other Delancey Place residents park in the community without drawing the ire of the association. The difference is that Gerstenacker’s truck featured the logo of the company she worked for, identifying it as a "commercial" vehicle.

The editorial concedes that blaming the Delancey Place association for Gerstenacker’s death is not fair. "Several other circumstances could have contributed, including how much care she took in crossing a busy, dark state highway, and the actions of the motorist who struck her. (The driver stayed at the scene and cooperated with investigators)," it reads.

However, it also states that associations should avoid putting their residents between a rock and a hard place. It notes that there are no side streets along Route 70 where residents of the area’s multitude of developments can conveniently park non-conforming vehicles.

As a general concept, community association rules must be reasonable. While restrictions against the overnight parking of commercial vehicles may be common for community associations, the plaintiffs in this case may argue that the circumstances rendered the rule unreasonable for this particular association. However remote the possibility of an incident such as the one underlying this case may be, community associations considering the adoption or continued enforcement of commercial vehicle restrictions should consider the facts of this recent tragedy and evaluate the extent to which such rules should be adopted or enforced. The extent to which the unavailability or limited availability of alternate parking arrangements for the community’s residents plays a factor in the court’s consideration as to the reasonableness of the commercial vehicle restriction remains to be seen.

Some may claim that oversize vehicles or those towing trailers present more substantial issues to community associations than standard-size cars and trucks with commercial signage – and those may further claim that there is no legitimate or reasonable interest served by restricting the type of vehicle in this case merely because of the commercial signage displayed thereon given the ability of similar vehicles without such signage to be parked in the community. As such, it may be challenging for the community’s board members to justify why similar pickups without company logos were allowed.

Community association managers and directors should consider regular periodic reviews of their associations’ rules and regulations to help ensure they are in conformance with changes in laws and norms. By considering their options and acting in a uniform fashion for different classes of vehicles regardless of the presence of company logos, associations may maintain cohesive standards while demonstrating their progressive nature.

Our firm’s other community association attorneys and I write regularly about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

 

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(10-23-19)

FHA Financing Rule Changes Benefit Condominiums Nationwide

By Laura M. Manning

A new rule by the Federal Housing Administration that went into effect Oct. 15th is making it easier for first-time condo buyers, even those with less than perfect credit scores, to get approved for FHA-backed mortgages.

The new rule allows individual condominium units to be eligible for FHA mortgage insurance even if the condominium development has not been FHA approved. It introduces a single-unit approval process, which will make it much easier for many condominium residences throughout the country to become eligible for FHA-insured financing.

The rule changes also extend the recertification requirement for approved condominium communities from two to three years, and it allows more mixed-use projects to be eligible for FHA-insured mortgages. Condo developments will be eligible for FHA financing if their commercial/non-residential space does not exceed 35 percent of the total floor area (previously the maximum was 25 percent).

The FHA provides mortgage insurance on loans made by FHA-approved lenders, which benefit from the added protection against the risk of default. According to the U.S. Department of Housing and Urban Development, the rule change is expected to make 20,000 to 60,000 condo units per year eligible for the FHA-insured financing.

Prior to this change, if a development had not been pre-approved for FHA-backed financing, prospective condominium purchasers could only obtain conventional mortgages. According to the FHA, only 6.5 percent of the country’s condo developments are currently approved to participate, so the new rule will substantially open the potential pool for condominium loans under the program.

However, under the new rule, the FHA will only approve a limited number of units in any condominium community that has not been FHA certified. For developments with 10 or more units, no more than 10 percent of the residences can be FHA-insured.

Condominium developments seeking FHA approval cannot have over 10 percent of the residences owned by one investor or entity, and no more than 15 percent of the unit owners can be in arrears to the association. In addition, a minimum of 50 percent of the units must be owner occupied.

Securing FHA approval for a condominium community can enhance the sales of its units and, ultimately, the property values of all its residences. The approval process can be a bit complex, so condominium associations and their property managers should consult with highly qualified and experienced association legal counsel for their guidance and expertise.

Our firm’s other community association attorneys and I write regularly about important issues for associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog in order to automatically receive all of our future articles.

 

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(10-9-19)

Condo Associations Fined for Sea Turtle Lighting Violations Illuminate Need for Awareness, Compliance at Florida Beachfront Communities

By Roberto C. Blanch

A recent article by the Marco Eagle newspaper reported that the Marco Island Code Enforcement Magistrate recently issued $1,000 fines to three condominium associations for violating sea turtle lighting restrictions. For one of the properties, it was the second such violation in consecutive months.

The violations involved lighting in the pool areas that reflect on the oceanfront buildings. These lights could potentially disorient turtle hatchlings, causing them to move away from the shore.

The newspaper report also noted that the city’s code enforcement office had recently issued $1,300 in fines against six condominium associations for violating sea turtle lighting restrictions. To date, the municipality has issued 45 notices of violation during the 2019 sea turtle season, 25 more than in 2018.

The article also states that a local condominium resident recently posted in a Facebook group that she found a dead sea turtle hatchling inside of a Ziploc-type plastic bag in her building’s lobby accompanied by a note reading: "This is what you get when you don’t close the blinds. They crawl towards the light."

Marco Island is not the only Florida beachfront municipality that maintains and enforces lighting mitigation restrictions during the sea turtle nesting season, which runs from March – October. In fact, many Florida counties and municipalities have similar ordinances, and representatives of oceanfront community associations in Florida should consult with their legal counsel to determine the applicability of such laws to their community as well as the best manner by which they may comply.

Some of the steps suggested by experts to safeguard against violations of applicable restrictions include turning off any unnecessary lighting, closing the blinds/curtains, shielding lights away from the beach, avoiding decorative landscape lighting on the beach side, planting vegetation buffers between light sources and the beach, and avoiding flashlights and flash photography on the beach at night. These and other measures, some of which require owner communications and cooperation, can enable associations to avoid violations that could lead to costly fines and negative publicity.

Our firm’s other community association attorneys and I write regularly about important issues for Florida associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association members, directors and property managers to enter their email address in the subscription box in the blog in order to automatically receive all of our future articles.

 

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(9-25-29)

Condo Association Website Compliance Checklist

By Laura M. Manning

The Florida law mandating condominium association websites went into effect at the start of 2019. By now, all condominium associations with 150 units or more (excluding timeshares) should have launched a website that complies with the new law. Those that have not already created their website should do so immediately in order to avoid any potential repercussions.

Under the new law, password-protected condominium websites for the exclusive access by association members must include the recorded declaration of condominium and bylaws along with any amendments to each, the articles of incorporation filed with the state, and the association’s rules and regulations. The website must also include a list of all executory contracts and transactions to which the association is a party or under which the association or unit owners have an obligation.

After bidding for related materials, equipment or services, the website must include a list of bids received by the association within the past year. Summaries of bids in excess of $500 received from vendors during the past year for materials, equipment or services must be maintained on the website for one year. In lieu of summaries, however, the association may post complete copies of those bids.

Condo websites must also feature the current annual budget, the proposed budget to be considered at the next annual meeting, year-end financial reports, and any monthly income or expense statements that will be considered at a meeting. The current board member certifications for each director must also be included.

In addition, notices of all board and membership meetings along with their corresponding agendas and any other document(s) required for each meeting must be posted. All meeting notices must be posted on the homepage of the website or on a "Notices" subpage.

Time deadlines for posting notices online must comply with the Condominium Act. Notices of membership meetings must be posted online at least 14 days before the meeting. Notices of board meetings must be posted online at least 48 hours before a regular meeting or 14 days before a meeting to consider adoption of a special assessment or rules affecting unit use. Finally, any documents that unit owners will consider and vote on at a membership meeting must be posted online at least seven days before the membership meeting.

Some property management companies are providing their association clients with websites. Though these can be quite useful and streamline the process of starting a website from scratch, associations should keep in mind that any change in management can cause an interruption in service that leads to falling out of compliance with the statute. Associations and their attorneys should consider taking ownership of their website from their property management provider to avoid any gaps in service.

Associations should also designate a board member to oversee the ongoing website updates, and they should consult with highly qualified and experienced community association attorneys to help ensure that compliance with the statutory requirements is fully achieved.

 

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(9-11-19)

Responding to Records Requests by Florida Community Association Unit Owner

By Roberto C. Blanch

Requests by unit owners to review official records of their community association should not present any difficulties for Florida condo associations and HOAs, yet records requests often become needlessly contentious.

Associations in the state are required to allow access to their official records within 10 working days after receiving a written request from a unit owner or their authorized representative. They may establish reasonable rules specifying the frequency, time, location and manner of record inspection and copying, but they cannot deny access. Those that fail to comply may be subject to compensate the requesting owner with a minimum of $50 per calendar day beginning on the 11th day after receiving the written request.

Some of the most common documents requested for inspection are certified copies of plans, permits and warranties provided by the developer, as well as copies of the declaration, articles of incorporation, bylaws, rules and regulations, accounting records and insurance policies. Association members also have the right to request a roster of all residents, but information such as health records, social security numbers, driver’s license numbers, credit card numbers, e-mail addresses, emergency contact information and other personal data are considered confidential records and should be omitted.

Legal documents involving ongoing litigation, information involving the sale or lease of units, personnel and salary records, and security information such as software passcodes used to safeguard the association’s data may not be accessible to members.

Association directors and property managers with any questions or concerns regarding member requests for official records inspections should always consult with highly qualified and experienced community association attorneys.

Our firm’s other community association attorneys and I regularly write about important issues for Florida associations in our blog at www.FloridaHOALawyerBlog.com, and we encourage association directors, members and property managers to enter their email address in the subscription box in the blog in order to automatically receive all our future articles.

 

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(8-28-19)

Added Challenges During Difficult Times

By Laura M. Manning

Changes and shakeups on community association boards of directors are common in Florida, and since the legislature has imposed term limits for association directors, communities are likely to see an even greater level of transitions to new board members in the years to come.

While it is still common to see the same directors serve year after year on association boards – mainly due to lack of participation – this practice does not present an ideal scenario for change. In a perfect world, board transitions should take place incrementally over time, enabling new board members to get up to speed on all the matters that are currently pending before the association with the help and guidance of experienced incumbent directors.

Wholesale changes to replace entire boards with new directors are never the best approach, yet unfortunately such total transitions do occur from time to time. Whether it is a board recall after a questionable election or a total overhaul election following some tempestuous controversy implicating the prior board, the new norm is entirely new boards comprised of completely novice board members taking over control from one day to the next.

What’s more, these total transitions are typically anything but smooth. Our firm’s other community association attorneys and I have experienced numerous total transitions under antagonistic circumstances, and they have all presented significant challenges.

A recent example involved an association whose directors were all voted out of office due to questions and problems involving a major remodeling and renovation project. Aside from complying with the Florida law mandating that they provide the new board with all of the association documents, files and financials records, the outgoing board members refused to meet with the newly installed directors to provide them with all the myriad details regarding the current state of the renovations and other association matters. The new directors were left to read between the lines of the association records to ascertain the exact state of every matter currently before the board, including the extensive renovations that were only partially complete.

Association boards that undergo major or total transitions to new first-time board members need to take a very proactive approach to get the new directors off to a strong start. If possible, new board members should schedule meetings with the prior board members to review all the issues that are currently before the board. New board members should also carefully review all the association’s records and financial documents and then discuss any questions that they may have with the property management and prior board members.

New directors should also schedule meetings with the association’s attorney, insurance broker, banker, accountant, contractor and all other professionals providing the association with important services and guidance. If the prior board members are unwilling to cooperate with the new directors, these professionals will offer invaluable assistance to enable the new board members to quickly gain an understanding of the current state of all matters pending before the board.

Also, keeping in mind that Florida law requires certification within 90 days after being elected or appointed to a condominium board, the best way to become certified and gain knowledge on how an association operates is by attending a complimentary board member certification seminar such as those offered by our firm on a regular basis.

The transition phase to a new board of directors represents a critical juncture for community associations. By taking a comprehensive approach and meeting with all of the individuals who can provide helpful guidance and information, new board members will be able to help ensure that their association does not miss a beat.

 

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(8-14-19)

Condo Association Strategies, Services to Address Short-Term Rentals

By Roberto C. Blanch

Condominium associations and HOAs throughout South Florida as well as across the country are seeking effective responses to the problem of short-term rentals that are in violation of their rules and restrictions. These unauthorized rentals, which have become prevalent with the growth of Airbnb and other online home-sharing platforms, can create a revolving door for guests with none of the prior screening and background checks that are typically performed for new residents and tenants.

As many associations have already realized, enforcing rules and restrictions against short-term rentals can be very challenging. Savvy unit owners have been known to sneak their transient guests into properties by advising security that their visit is authorized.

As such, enhanced vigilance and guest-screening measures have become necessary, and many associations have developed and implemented new registration forms for use with guests and tenants along with written assurances and noncompensation statements indicating they are not paying for their stays.

That may not go far enough for some associations with owners who are highly determined to rent their units. For some, it has become necessary to retain a private investigator to gather and document incontrovertible proof that restricted rentals are taking place. Licensed private detectives can effectively investigate homeowners and tenants in violation of association bylaws and CC&Rs that prohibit turning units into short-term vacation rentals. Also, court actions may become necessary against some unit owners who flout the rules, and the evidence obtained by these investigators as well as their testimony can be very helpful in these proceedings.

Another option is offered by several service providers that have sprouted up to help associations and other landlords monitor and detect listings for rentals of their properties in the leading home-sharing websites as well as Craigslist. These companies use automated and proprietary search applications and algorithms to find and report listings in their clients’ communities and properties. Once the listings are identified, some offer additional investigation and enforcement services to help associations and landlords take the necessary steps to stop the rentals. Look for short-term rental monitoring and compliance in all the major search engines to find and research these options.

In addition to these monitoring and enforcement measures, the implementation of a clear fining or suspension policy, if permitted, is also essential for associations to address unauthorized short-term rentals. This will typically entail the adoption of a new rule in which all the fines and other consequences are delineated.

Some associations are responding by taking a more lenient approach and adopting new amendments, bylaws or rules to limit the number of nights a residence may be rented, which can offer a level of flexibility for owners while also avoiding the possibility of creating a constant flow of unfettered short-term guests.

Unit owners partaking in short-term rentals of their units need to be mindful of local laws or ordinances that may further restrict or govern the practice at their location. Condominium boards and management have also identified violations of such laws/ordinances as the basis for enforcement actions against unit owners.

The growth of Airbnb and its competitors in today’s sharing economy appears to have no end in sight. By working with experienced association counsel and utilizing these strategies and services when necessary, community associations can effectively enforce their rules governing short-term rentals.

 

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(7-31-19)

Educational, Professional Resources Enable Owners to Answer Call of Community Association Board Service

By Laura M. Manning

Those who reside in association communities should view board membership in the same vein as a civic duty or public service. An effective board is essential for the financial and administrative wellbeing of associations, so all eligible unit owners should consider running for the board of directors as their contribution back to their community.

The responsibilities of serving as a director are neither too complex nor demanding for the capabilities and skillsets of most association unit owners. What is required is time and dedication, but not to the point where it becomes too daunting for the average owner.

To be a successful board member, it is essential to make effective use of the professional and educational resources available in the community. This begins with relying on highly qualified and experienced professionals such as attorneys, property managers, accountants, insurance brokers, etc.

At the start of one’s board service, Florida law requires that new board members become certified within 90 days of being elected or appointed to the board. The best way to do this is by attending an educational course that has been certified by the Florida Department of Business & Professional Regulation, such as the board member certification seminars offered by our firm on a regular basis. These seminars enable board members to gain a keen understanding for everything that the position entails. They cover all of the basics of community association governance and the laws which are involved, and they also touch on some of the most common problem areas that boards regularly encounter.

Board members should also make use of the ample online resources that offer the most vital information for associations. The Community Associations Institute, which is the largest organization representing community associations in the world, offers a great deal of helpful articles and guides at www.caionline.org. Also, our firm’s blog at www.FloridaHOALawyerBlog.com is one of the leading sources for information for community associations in the state, and we encourage association members to enter their email address in the subscription box in the blog to automatically receive all of our future articles.

Expos and events that are aimed at community associations and its members are also very helpful, as are publications such as this one and the Florida Community Association Journal.

Those who are considering board service should first take part in their association’s meetings and perhaps serve on one of its committees prior to seeking election for a board seat.

Owners in community associations should answer the call of service to their fellow neighbors by serving on their board. By making effective use of the resources that are available to directors, owners can become equipped to make important contributions to the financial and administrative operation of their community.

 

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(7-17-19)

Do Orderly Community Association Board and Member Meetings Exist?

By Roberto C. Blanch

All too often, community association attorneys are asked for guidance on how to prevent unruly behavior from disrupting board and owner meetings. Since items addressed at these meetings can have a significant impact on the welfare of an association and the financial responsibilities of its owners, conversations dealing with topics such as special assessments and annual elections can quickly become contentious. The following are helpful tips on how to try to keep your meetings on track and in order:

1. Use Robert’s Rules of Order – This common form of parliamentary procedure, including meeting protocols, allows meeting facilitators to manage meeting time effectively, all while ensuring that meeting discussions stay on topic. While not mandated in all associations as the method by which meetings are to be guided, owners and directors may be familiar with Robert’s Rules of Order, making this method a straightforward way for participants to follow and respect the meeting procedures.

2. Be specific about who can attend – The association should establish rules determining who can participate, and for what amount of time, in advance of the meeting. Generally, owners, directors and their respective counsel are the only people allowed to participate in such meetings.

3. Make the purpose of the meeting clear – Prepare an agenda that outlines the specific items to be discussed. Should the meeting require an owner vote on a topic, be sure to be transparent about the topic, providing participants with any supplemental documents they may need to make an informed decision.

4. Allow participation – Give each authorized attendee a voice, but restrict statements to those dealing with agenda items only and in accordance with the set time limitations contained in a rule. This will prevent anyone from derailing the meeting, as it enables the chairperson to control and minimize tangents.

5. Permit contributions – Rather than have an open-ended agenda item that opens the floor to miscellaneous topics, allow owners to submit desired talking points, on the specified agenda items, in advance of the noticed meeting. This method will enable owners to feel heard, while also avoiding the possibility of the board being blindsided by a topic that the directors may not be prepared to discuss.

6. Set the right tone – Set an example by remaining composed and following the meeting protocols that are in place. Be open to hearing other people’s perspectives and making the meeting feel more like a team effort, rather than a dictatorship.

7. Enforce the rules consistently – Make sure that all participants are following the rules. Do not allow someone to speak for longer than the allotted time just because they are making a good point. In the same light, take action against those who continue to break the rules. If providing a noncomplying attendee with a verbal warning does not stop them, then call for an immediate ejection the next time the person speaks out of order.

By working with association counsel to effectively apply the approaches outlined in this article, including having the right people in the room, streamlining meeting procedures, having effective rules in place, and using a clear and concise agenda, association meetings are sure to be more productive and effective.

 

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(7-3-19)

Hurricane Preparedness: What Associations Need to Know

By Laura M. Manning

Hurricane preparedness is a significant undertaking for every community association in Florida. Being well prepared — and well informed — can determine whether association boards and their managers will sink or swim in the aftermath of a storm. Here are some helpful tips to enable associations to stay ahead of the 2019 hurricane season, which officially began on June 1st and will end on November 30th:

• Maintain an up-to-date paper roster of the current residents, and store it at an accessible off-site location. A separate list of residents who are remaining in the building should also be kept. Accounting for the whereabouts of all residents can be vital for emergency response teams who might have to provide medical assistance to any residents in need.

• Keep important documents at a safe alternate location. This includes a copy of the association’s governing documents, a certified copy of the insurance policies, bank account information, service provider contracts, and contact information for all residents, staff and association vendors.

• Take date-stamped pictures and videos of the entire property for insurance purposes. This should include the inside and outside of the property and all common areas, as well as equipment such as computers. Send these pictures and files to someone away from the state along with the contact information of your insurance agent and public adjuster.

• Consider pre-negotiated service contracts with vendors who typically assist in the aftermath of a storm. This can include water restoration companies to mitigate flooding, debris removal companies, and security providers. Have your attorney review ALL contracts before signing anything. Companies have been known to take advantage of associations. Your attorney will ensure that adequate protections are included.

• When creating the association’s hurricane preparedness plan, make sure you do so as if you will not be able to access your building in the aftermath of the storm. Make sure you have a plan in place for entry back to the property, designate who will be first on site, and create a backup plan for what will be done should local officials deny access to the building or close off the area. Also, implement a method where the board can call and hold an emergency board meeting, should one be necessary.

Being prepared in advance of a storm is fundamental for every community association in Florida. Though no one can control the intensity of a hurricane or where it decides to make landfall, community associations can control how prepared they are to deal with one.

 

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(6-19-19)

Talk About a Condo Commando! Director Fires Gun to Shoo Away Teens from Pool

By Roberto C. Blanch

"I’m putting my own life at risk!" That’s what an Ormond Beach, Fla. homeowners association director is reported to have said after he fired his gun into the ground in an effort to shoo away two teenagers from the community pool.

Thankfully, nobody was hurt in the incident, which resulted in the arrest of Richard S. Marcelle, 66, for three counts of aggravated assault with a deadly weapon without intent to kill and discharging a gun in public.

According to reports in the Daytona Beach News-Journal and local television stations, the encounter took place at approximately 9:15 on the evening of April 22 when Julian Johnson, an 18-year-old resident of The Village subdivision, and a younger friend visited the community pool. Marcelle, who is a member of the HOA’s board of directors, approached and informed them that the pool was closed.

When Johnson noticed a sign indicating the pool is open until 10 p.m. as he and his friend were exiting, they pointed it out to Marcelle. Apparently, residents had not yet been notified, and new signs had not been posted, announcing a recent change to the pool hours.

As they attempted to re-enter the pool area, the association director intercepted them and brandished a handgun, which he then fired into the ground. One of the teens then asked: "Did you really just shoot a gun?" Marcelle’s response: "Yes, I am putting my own life at risk!"

A surveillance camera captured the confrontation on video, which shows that the teens were not armed nor acting in a threatening manner toward Marcelle.

This case takes the slang phrase "condo commando" to new extremes. It demonstrates the potential safety and liability issues that could arise when directors go rogue in their enforcement of association rules and resort to using weapons and threats of violence to carry out their objectives.

While many community association stakeholders may relate to various aspects of this case, the use of a handgun or other deadly weapon should never be an option to carry out association duties. For instance, many association representatives can relate to the need to promptly notify the community of modified or newly implemented rules or restrictions. Similarly, many communities may have to address residents and guests which may or may not be using facilities in alleged violation of the community’s restrictions. Some directors and managers may feel as though they are performing a thankless job, which in some instances even entails being confronted by residents or guests.

However, no matter what the circumstances might be, the role of directors and managers should never include the use of deadly force to enforce or carry out community association objectives. Doing so may expose not only the individual director or manager to personal liability, but it may also result in adverse legal consequences for the association.

Community association boards of directors and property managers should work with highly qualified and experienced association legal counsel to establish reasonable and effective policies and protocols for rules enforcement, and they should remain vigilant and act quickly to detect and prevent any individuals from employing their own over-zealous tactics.

 

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(6-5-19)

Wrongful Death Lawsuit Illustrates Potential Repercussions of Inadequate Enforcement for Community Associations

By Laura M. Manning

The horrific murder of an 11-year-old Las Vegas girl stemming from a shooting into her home, which had been mistakenly targeted by local gang members, has led to a wrongful death lawsuit against the homeowners association and property management firm. The tragic case delivers a very clear and important message for community associations contending with problem residents who may pose a threat.

The shooting last November was caught on surveillance video, which shows multiple assailants firing indiscriminately into the home where Angelina Erives lived with her mother, step-father and two sisters. The shooters were confused as to the location of their intended target, which was a home two doors down the street, when they killed Angelina.

According to statements of the attorney for Angelina’s mother and siblings in several news reports, the neighboring property had been occupied by as many as 20 different tenants and the police had been called to that property on numerous occasions. The homeowners association and property management company were aware of the problems and had been in communications with the owner of the home. However, the association’s apparent enforcement of the community’s covenants, conditions and restrictions fell short of evicting the problem residents.

"Defendant Traditions HOA owed a duty of care to act as a reasonable homeowners association," reads the complaint. "These duties include, but are not limited to, ensuring that tenants renting homes in the Traditions community abided by CC&Rs and ensuring tenants and properties were not a danger or nuisance to the community. Defendant also owed a duty to enforce remedies provided for in the CC&Rs, up to and including eviction, of tenants who committed three or more material violations of the CC&Rs within a 12-month period."

The suit also states that the HOA and property management defendants’ "conduct in not enforcing the CC&Rs, allowing gang members to reside at the Property, and allowing the Property to become a danger to the community was despicable and so contemptible that it would be looked down upon and despised by ordinary decent people and was carried on by Defendants with willful and conscious disregard for the safety of anyone in the Traditions community."

If these claims hold up in court and a jury finds that the HOA failed to enforce its rules and evict tenants who had committed three or more material violations within a 12 month period or were demonstrably a danger to the community, the potential liability could be significant. The lawsuit is seeking punitive damages, which are intended to punish and make an example of the defendants as well as deter other associations and property management firms from similar conduct in the future.

Even without the potential negative outcome for the HOA in this case, the horrifically tragic death of Angelina and the allegations that it failed to provide for the safety and security of the community’s residents should send a clear message to all associations. The restrictions against problematic and potentially dangerous residents are among the most critically important measurers that associations are charged with monitoring and enforcing. Lax attitudes toward these provisions could lead to extremely dire and devastating consequences, so associations must always remain vigilant against violators and expeditiously enforce their restrictions.

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(5-22-19)

Condos and Cameras:

Privacy Concerns Involving Doorbell Cameras

By Roberto C. Blanch

Home automation is a fast-growing segment of the tech industry, and the use of Internet-connected doorbell cameras has become particularly popular for those seeking an extra level of security at a reasonable price. These motion-activated cameras enable users to monitor everyone who passes by their front door, whether on a live or recorded video feed. While use of these devices may present less privacy issues for those residing in single-family homes, what about for those who reside within condominium buildings with shared hallways?

Proponents of doorbell cameras in condominium buildings may argue that the convenience and safety benefits they provide outweigh the privacy concerns and any issues of improper alterations to the common element portions of the condominium building. For example, a doorbell camera, which may also be capable of recording audio, may view and record within another dwelling unit that may be located across the hallway when the door of such unit is open. The use of a doorbell camera in such a scenario may be considered an invasion of privacy.

Similarly, some condominium governing documents restrict the right of owners to install devices or other alterations upon doors or other portions of the condominium property located outside of the unit. Doorbell cameras may be considered in violation of such restrictions.

Irrespective of which side of the argument is favored, condominium association boards and managers should evaluate the extent to which they have the authority to govern and restrict the use of doorbell cameras by unit owners in common hallways and whether such regulations further the use of doorbell cameras in a manner that balances the interests of the association to protect appearance of its common elements, reasonably preserve the privacy of its residents, and offer residents a convenient manner to add a level of safety.

For condominium boards of directors that are considering rules and regulations over the installation and use of doorbell cameras in common-area hallways, they should understand that it is always best to set practical and uniform policies in advance to help prevent any issues from occurring. For instance, boards should consider requiring evidence demonstrating that the recorded video will not be able to view inside of other units, and they could also impose a ban on cameras with audio recording capabilities to ensure that the conversations of neighbors cannot be monitored. Boards of directors may also wish to consider requiring that owners install, maintain and repair all fixtures involving the use and removal of the device.

It is important for condominium associations to work closely with highly qualified and experienced association legal counsel to formulate and implement the ideal approach toward doorbell cameras for their community. The privacy concerns are serious, and they should be tackled in advance of any potential issues that may arise.

 

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(5-8-19)

Article in The New York Times Titled "When Condo Boards and Residents Clash, Legal Bills Mount" Features Input from This Writer

By Laura M. Manning

Our firm’s other community association attorneys and I are often called upon by journalists for our insights into the issues impacting condo communities and HOAs. When The New York Times "Wealth Matters" columnist Paul Sullivan recently decided he needed to turn to a highly experienced community association attorney for input for a major article on association living, I am pleased to say that he called on me.

Paul’s article, which is titled "When Condo Boards and Residents Clash, Legal Bills Mount," appeared in the Your Money section on Saturday, March 30, 2019. It focuses on some of the most common issues that can cause disruptions and financial strains for community associations.

The article reads:

My mother-in-law recently regaled me with a tale of intrigue, money and power in her South Florida homeowners association.

Seeking to raise about $6 million to refurbish the 20-year-old community, the association’s board had voted to assess each homeowner $7,000. But a group of vocal residents fought back, setting up a power struggle.

This conflict is nothing new to anyone who has dealt with a condominium board or homeowners association, which has well-defined obligations to the residents. As the overseer, it hires workers to cut the lawn, take out the trash, clean lobbies and common areas and maintain pools, tennis courts, golf courses and other amenities. If the elevator breaks or the roof leaks, the board gets it fixed.

But if it wants to do something cosmetic — renovate the lobby, add pickle ball courts or install a fitness center — the board needs to put its idea to a vote of the residents.

The article continues:

. . . In Miami Beach, Fla., a condo called Nine Island Avenue became a case study in how not to remodel a pool area. One resident, the daughter of the developer, sued the condo president over renovations that were done to the building, including changing the color of a koi pond, removing an old trellis and selecting new pool furniture. The case went to arbitration, and the judge sided with the resident, saying the changes were never approved by the residents and had to be undone.

Most of these battles are settled in arbitration, but the legal costs can still run into the tens of thousands of dollars.

Laura Manning-Hudson, a partner at the law firm Siegfried Rivera, said she used Nine Island Avenue as an example for boards thinking of acting without input from the owners. "I try to keep my clients out of litigation as much as possible," she said.

. . . When boards and residents clash, tempers flare, residents take sides and big legal bills often follow. Yet determining who is at fault is never easy. One person’s selfless board volunteer is another person’s condo commando. But at the root of many disputes are issues of transparency, misunderstanding, overreach and, of course, money.

Ms. Manning-Hudson said a good rule of thumb for board members was to put big decisions to a vote. But they also need to know that deferring required maintenance can make a board member personally liable for negligence. Whether postponing a large assessment to complete a cosmetic renovation is good or bad often depends on neighboring buildings. Sometimes, a new development can depress the value of the older properties nearby.

It concludes:

. . . Sometimes, however, residents win the battle. In my mother-in-law’s community, the group challenging the assessment prevailed. It ousted the board, halted the assessment and set aside the renovations. Moreover, it did so without incurring hundreds of thousands of dollars in legal bills.

I was honored to be selected by this business columnist with The New York Times to provide legal insight on association disputes for the newspaper’s millions of readers across the globe. Visit https://tinyurl.com/y2keg89c to read the complete article in the newspaper’s website.

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(4-10-19)

Stricter Disciplinary Penalties for Florida Community Associations Now in Effect

By Laura M. Manning

A couple of years ago we saw the Florida state legis-lature add teeth to Florida’s condo and HOA laws governing theft, fraud, abuse and conflicts of interest. Recently, the Department of Business and Professional Regulation, the state agency that governs community associations, followed suit by implementing harsher civil disciplinary guidelines for condominium association infractions.

The new guidelines detail the civil penalties and disciplinary procedures for violations of the Condominium Act and the Florida Rules of Administrative Procedure involving accounting records, assessments, boards, budgets, common expenses, conflicts of interest, debit cards, elections, estoppel certificates, final orders, fiduciary duty, investigations, records requests, financial reporting, reserves, special assessments and websites.

For minor violations, the disciplinary guidelines call for the agency’s Division of Condominiums, Timeshares and Mobile Homes to issue the association with a written Notice of Noncompliance "due to the violation’s lower potential for public harm." If the association fails to comply with the stipulations called for in the Notice, it could result in sanctions and enforcement with monetary penalties being imposed in amounts between $5 and $10 per unit for each violation. The maximum penalty for minor violations is $2,500, for a single minor violation.

The new procedures also eliminate the notice requirement for violations that are considered "major," which constitute the bulk of the infraction types listed above. For example, while in the past an accounting or records request violation would result in a warning letter, now the Division is moving directly to the issuance of fines. For all "major" violations, the penalty imposed will range from $10 to $30 per unit for each violation, with a minimum penalty of $500, whichever is greater. The exact amount will be based upon any aggravating or mitigating circumstances pertaining to the violation. For both types of violations (minor and major), multiple counts of violated provisions or combinations of violations would be added together to determine the total penalty.

The new guidelines for disciplinary penalties should send a very clear message to associations and managers about the potentially significant ramifications of any failure to comply with the applicable laws and regulations. These penalties can take a severe financial toll on associations, which should work with highly qualified and experienced legal counsel to help ensure that they always remain in compliance.

 

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(3-27-19)

Rules on Drones All Community Associations Should Consider

By Roberto C. Blanch

Drones have become extremely popular for those who yearn for the latest gadgets and gizmos. Many associations have already adopted rules to address the use of drones in their communities, and those that have not done so should give it serious thought and consideration.

When equipped with cameras, drones can be used to violate the privacy of association residents, not to mention their ability to cause major property damage, so associations should take a proactive approach toward developing and implementing rules and restrictions to protect the interests of those residing within their community. Specifically, some examples of the rules and policies that associations are implementing include:

1. Restricting the space within which drones may be flown, such as over their operator’s personal lot, or those lots of adjoining neighbors (with their prior permission).

2. Limiting drone use to association common areas that are away from roads, buildings, playgrounds and other amenities.

3. Assigning all risks and liabilities involving the use of drones to their operators, and requiring such operators to also indemnify the association, as well as its directors and representatives, against all claims involving drones.

4. Specifying that drones must be operated in accordance with all applicable federal, state and local regulations. (Adding this to an association’s drone regulations provide it with the ability to implement remedies, such as fines for violators).

5. Banning video and photography of others in the community taken from drones without such individuals’ prior written consent.

6. Banning the use of drones in such a manner as to cause a nuisance or disturbance to others in the community.

These and other rules and policies enable associations to maintain control and implement common-sense restraints over the use of drones in their communities. Association boards of directors should work with their property management and highly experienced legal counsel to develop and implement the drone rules and policies that are the best fit for their community.

 

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(3-13-19)

Saga of Nightmare Neighbor at Orlando Condo Ends with Conviction for Stalking

By Laura M. Manning

Residents of the Phillips Bay Condominium in Orlando, Fla. are finally breathing a sigh of relief after a years-long saga of a nightmare neighbor appears to be coming to an end with a conviction for aggravated stalking. Residents are now awaiting a final ruling from the court on the penalty for the third-degree felony, which under Florida law can be as high as five years in prison, five years of probation and $5,000 in fines.

According to an arbitration order from the state’s Division of Condominiums under the Department of Business and Professional Regulation, the complaints against unit owner Marianna Seachrist (41) at the condominium association began in early 2014, shortly after she moved in to the community. Neighboring unit owners complained of constant pounding and rumbling noises at all hours of the day and night, and police were eventually called when Seachrist threatened to hire someone to kill one of the board members.

The loud and disruptive noises continued, and the threatening behavior escalated to the point that some residents lived in fear of walking around the community. After multiple incidents and calls to police, her downstairs neighbor was granted a temporary injunction for stalking protection in 2015.

After Seachrist was served with the injunction, deputies had to return to her condo three successive days because of noise disturbances. In subsequent visits they heard low-bass rumbling and knocking noises, and after obtaining a search warrant they rammed the front door and discovered an elaborate sound system, including three low-frequency speakers mounted to a board and placed face-down on the floor in the living room, hallway and closet. The speakers were also weighed down by dumbbells and cinder blocks, and they were wired to an amplifier using a tablet to play a recording on a loop of bass-clicking noises that would vibrate the room. The setup allowed for the remote operation of the system using a smartphone.

In addition to the arrest for aggravated stalking, Seachrist’s civil penalties handed down under the arbitration in early 2017 included $1,000 per month to be paid to the association to subsidize the rent for a law enforcement officer to reside in the community as part of the municipality’s courtesy officer program. The order also called for $1,875 to be paid to the association for damaged landscaping and related services.

According to the latest reports by Orlando’s WFTV (Channel 9, ABC) in February, Seachrist was recently found guilty of the stalking charges and has been jailed while awaiting sentencing. Her parents have sent an email to the judge asking for spiritual help for their daughter so she may "confess and find peace in her soul," according to court records. Her unit is now in foreclosure.

The arbitration order and news reports in this case paint a picture of a troubled unit owner who made life very difficult for her fellow neighbors. While it may have taken years to resolve, it appears that the condominium association and unit owners did everything that they could to address the issues caused by this unit owner through both civil remedies and criminal charges.

Other community associations dealing with troublesome and disruptive unit owners should take note of this case and follow similar courses of action with the help of highly experienced association legal counsel to address such issues through both civil authorities and law enforcement.

 

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(2-27-18)

Similar Reports of Association Theft on Both Coasts on Same Day Send Message to Boards of Directors Everywhere

By Roberto C. Blanch

Reports of association theft, fraud and embezzlement are no surprise to the community association attorneys at our firm, but two similar reports on the same day from communities on both the east and west coasts of the country drew our attention.

The media reports of the incidents, which both ran on Thursday, Jan. 17th, are very similar. The one in the Nisqually Valley News newspaper in the state of Washington chronicles how the Clearwood Community Association filed a complaint alleging its former bookkeeper embezzled nearly $300,000. The suit against Dolanna K. Burnett, the former bookkeeper, and her husband claims that she wrote multiple checks to herself and covered it up in the accounting system dating back to 2014.

The newspaper article states Burnett had a previous conviction in 2014 for theft, identity theft and forgery. She used counterfeit refund checks totaling $17,000 while she was working for the Tacoma Health Department and deposited them into her personal account. This information was discovered last summer and taken to the Clearwood Board of Directors, which stood by its decision to retain her and continued to use her as its bookkeeper.

This led to an outcry by the unit owners, eventually prompting a majority of the board members and Burnett to resign from their posts.

By the end of the year, the board hired a forensic accountant and discovered evidence that the former employee had been stealing significant sums from the association’s general account for years. It turned the case over to the county sheriff’s office and filed a civil suit against Burnett.

The complaint lists numerous suspect transactions. It claims Burnett in 2016 wrote a check for more than $41,000 to her business, Lovolt Communications, Inc., then she deleted the transaction from QuickBooks and created a false new entry using the same check number and citing the recipient as "Thurston County Auditor."

The suit also alleges that on at least five occasions she initiated debit transfers from Clearwood’s accounts to Capital One and used association accounts to make payments to Quicken Loans, which is the holder of her mortgage. At the time of the filing, the suit alleged approximately $261,000 had been stolen, but the sum was expected to increase as forensic auditors were still working to uncover additional fraudulent transfers.

The other news coverage hailed from the city of Washington in North Carolina. Several TV stations there reported that local authorities had accused the secretary/treasurer of the Mixon Creek Homeowner’s Association of stealing more than $97,000 from the association’s coffers. The Beaufort County Sheriff’s Office charged 36-year-old Charlotte J. Cutler with embezzlement after obtaining multiple court orders and analyzing bank records.

In both cases, it appears individuals entrusted by the associations with the management of their finances were able to take advantage of their positions to conceal and disguise their thefts.

To avoid becoming a victim of this sort of fraud, associations must put in place precautions and safeguards. These include monthly reviews of all bank and credit card statements by at least two people, ideally including both a board member and management staff. There should also be an annual audit by experienced and reputable accountants to provide a careful review and independent certification of the validity of all financial records.

Associations should also consult with their independent accountants and lawyers to discuss other protocols to implement in order to avoid what occurred at these communities.

Embezzlement of association funds and community association fraud have garnered more governmental attention lately, as evidenced by efforts to expand accountability. These include revisions to condo statutes providing criminal penalties under Florida’s 2017 condo fraud laws, which were aimed at giving law enforcement a mandate to take cases of association fraud extremely seriously and allocate the resources to addressing these issues that they deserve. Florida associations must make effective use of the proper safeguards, and those that do become victimized are now better equipped to engage law enforcement than they were prior to 2017.

 

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(2-13-19)

Establishing, Utilizing and

Setting the Ground Rules

for Community Association Committees

By Laura M Manning

Not enough community association boards make effective use of committees. Committees can be very useful when it comes to providing recommendations to the board and assisting the board with carrying out its duties and responsibilities. However, many associations do not take the time to establish committees or set parameters for their work so that committees may assist in the operation of the association.

Setting up committees is the responsibility of an association’s board of directors. The board must appoint the members of each committee at a properly noticed board meeting, during which the directors should provide instructions and set parameters for the scope of the committees’ responsibilities.

One of the best approaches is for boards of directors to use their annual meetings to establish various committees, appoint committee members and establish areas of purview for each. Each committee should have at least three members.

With the exception of the rules enforcement committee, board members may also serve as members on committees. Many associations choose to have a board member on each committee along with two non-director volunteers, as this enables the board member to keep their fellow directors abreast of the committee’s work and progress.

The only committee that is required by law for Florida community associations is the rules enforcement committee, which is also often referred to as the fining, violation or grievance committee. Associations that wish to levy fines and impose the suspension of use rights for violations must utilize such a committee to do so. Per Florida law, this committee cannot be comprised of board members or spouses or relatives of board members in order to maintain its independence from the board.

Fines or suspensions may only be imposed after the association provides at least 14-days written notice to the owner, occupant, licensee or invitee to be fined or suspended, and they must be provided an opportunity for a hearing before the rules enforcement committee. During these hearings, the committee should hear and evaluate the alleged violator’s side of the story behind the underlying fine. The hearing should be closed to all members except for the alleged violator and the corresponding unit owner, should the violator be their tenant. At its conclusion, the committee members should vote on whether to confirm or reject the fine or suspension levied by the board, which requires a majority vote to be imposed.

The other most common types of committees are the budget committee, which assists the board with creating the annual budget, and the architectural review committee, which is typically charged with reviewing any requests for construction, improvements or alterations taking place on association property or within a unit or exterior of a lot.

By utilizing committees and ensuring that they are staffed by dedicated volunteers, associations can facilitate their operations while also avoiding overburdening board members with too many issues and responsibilities. When first establishing committees, boards of directors would be well advised to consult with highly qualified association legal counsel regarding their creation and setting forth the scope of their responsibilities.

 

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(1-30-19)

Community Association Directors, Officers are Protected from Frivolous Lawsuits

By Roberto C. Blanch 

There are many objections to board service that are often cited by unit owners who are reluctant to serve on their community association’s board of directors. While the time commitment is a prevalent concern, some believe that the post also brings with it an unreasonable level of liability and exposure to lawsuits by disgruntled unit owners.

To quell those concerns, such individuals should recognize that condo associations and HOAs typically carry Directors and Officers Liability Insurance (aka D&O insurance), which serves to defend and protect directors from lawsuits to which they may be exposed. Additionally, directors are also protected by indemnification provisions of the Florida laws governing not-for-profit corporations as well as the articles of incorporation of their association.

These protections shield directors from personal liability for monetary damages to the association or any others for any statement, vote, decision, or failure to act to the extent the director or officer was carrying out their duties. The exception to such protections under Florida law and association governing documents tend to arise with knowing violations of criminal law, transactions from which the director derived an improper personal benefit, willful misconduct, recklessness, or an act or omission which was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property.

Under the relevant statutes and association documents, unless directors act in such an egregious manner, they should be indemnified by the association and any legal actions taken against them should be covered under the association’s D&O insurance. The coverage tends to include their legal defense and may extend to damages that may result from claims and/or negligence.

Essentially, so long as directors act in a reasonable manner and seek the guidance of qualified professionals regarding association matters, they will be able to rest assured that their indemnity and insurance protections will shield them from liability. The fear of exposure to frivolous lawsuits should not prevent any unit owners from answering the call to serve as a director or officer for their community’s association.

 

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(1-16-19)

Excessive Levels of Radon Gas Raise Legal, Insurance Questions for Florida Condo Association

By Laura M. Manning

A recent news report about excessive levels of radon gas in a Florida condominium raises some interesting questions about the proper response from a condominium association and its insurance carriers on this issue.

The report, which appeared in late November in the pages of the Venice Gondolier Sun, chronicled how the owners of a unit at the South Preserve II of Waterside Village Condominium were surprised to learn that tests conducted at the behest of their tenants found excessive levels of radon in their unit. The odorless and colorless gas, which comes from the radioactive breakdown of naturally occurring radium found in most Florida soils, rocks and groundwater, is the second leading cause of lung cancer overall and is the leading cause among non-smokers. In Florida, one in five homes tested has elevated radon levels above the limits set by the Environmental Protection Agency, and the gas can be found in homes, schools, offices and high-rise condominiums.

According to the newspaper’s article, the unit owners sent the test results to their association, which hired a different company to conduct its own tests that yielded similar results. The radon levels in the residence were more than five times the level considered safe by the EPA.

The owners obtained an estimate for $3,100 to mitigate their unit, but per EPA rules the company would be required to inform the neighbors of the mitigation process. It also requested that the owners sign an "inadvertent collateral mitigation form" stating the company would not be held responsible for any environmental impacts on adjoining units.

After consulting with the association’s attorney and insurance carrier, the property manager told the owners that because the radon levels existed within the boundaries of their unit, it was the owners’ responsibility to mitigate. The association agreed to allow the owners to conduct the mitigation, but it also demanded that they first sign an agreement making the owners liable for any radon infiltration into other units caused by the process.

Needless to say, the attorney for the unit owners told them that they would have to be crazy to sign such an agreement. The owners believe that there are probably elevated radon levels throughout the building, which would make it the responsibility of the association to mitigate. They have banded together with three other unit owners who are also concerned about the issue and have requested a meeting with the board of directors and property manager to discuss the next steps.

For this and other Florida community associations, the prospect of excessive levels of radon and related mitigation procedures can present unexpected challenges with the potential for legal and financial repercussions. Unlike HOA communities with detached single-family homes, a condominium association’s concern is the possibility that the mitigation process could affect adjacent units.

Association boards of directors and property managers that are contending with issues involving excessive radon levels should consult with highly qualified and experienced association legal counsel to assess the situation and determine the most prudent course of action from a legal liability standpoint. If the excessive levels are pervasive throughout the property and not contained within a single unit, associations will need to carefully consider any response with the guidance and assistance of their insurance carriers and attorneys.

 

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(12-19-18)

Helpful Tips for Successful Condominium Association Annual Meetings, Elections

By Laura M. Manning

This is the time of year when many Florida condominium associations conduct their annual meeting and election of directors. Here are some helpful reminders about the process to ensure that your community’s meeting and election avoid potential glitches and remain in compliance with Florida law.

Board membership should be viewed as being akin to a civic duty for condominium owners. So long as individuals meet the basic legal requirements, to wit: they are current on all of their financial obligations to the association and are not a convicted felon, they are otherwise eligible to run for a board seat in most associations.

The election notices that are distributed by the association to all of the owners begin with the initial notice that must be sent out at least 60 days prior to the election. This notice should include information on the deadlines for submission of notices to the association for those who intend to run for a board seat. All candidates must provide their association with a written notice of their intent to run for the board of directors at least 40 days prior to the date of the election. Registered candidates are then able to lobby their fellow owners, and they may submit a resume to the association at least 35 days prior to the election. The resume, which may not exceed one side of a standard piece of office paper, should contain details about a candidate’s professional and educational background as well as any other attributes and qualifications that they would like to include.

A second notice of the election, which must be distributed between 34 and 14 days prior to the election, must include copies of all the resumes submitted by the candidates together with the ballot and the inner and outer envelopes.

Keep in mind that the use of two envelopes is designed to help ensure confidentiality in the voting process. While the inner envelopes containing the completed ballots should not include any identifying voter information, the outer envelope must include the name of the voter, their unit number and their signature. Failure to include the unit number and a signature on the outer envelope will result in the envelope being discarded and not counted.

For the annual meeting itself, associations should make blank ballots and envelopes available for use by the owners who did not already vote by mail. It is not necessary for a quorum of the unit owners to attend the annual meeting in order to hold the election, however at least 20 percent of the owners must have cast a ballot in order for the election to proceed.

At the election, the tallying of the votes must be handled by a committee of independent and impartial unit owners who have been appointed by the board and do not include any current board members or their relatives, or anyone running for the board or their relatives. The committee is tasked with verifying that the voters identified on the outer envelopes are indeed eligible to vote and have signed the envelopes. Only once the outer envelopes have been verified and a determination made that at least 20 percent of the owners have cast a ballot, then the committee may open the envelopes and tally the ballots.

Bear in mind that while Florida law now allows for online voting for board elections, the traditional process of using paper ballots must also be made available to the members. Boards of directors that have adopted resolutions to offer electronic voting must utilize a system that verifies voters’ identity and eligibility.

Associations that wish to adopt online voting or have questions about all of the necessary procedures under Florida law and their own governing documents should work closely with highly qualified and experienced community association attorneys to help ensure that their annual meeting and election run as smooth possible.

 

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(12-5-18)

Takeaways from HOA’s Handling of "Parkland Strong" Yard Sign Controversy

By Roberto C. Blanch

In the aftermath of one of the worst school shootings in U.S. history, the residents of Parkland in Broward County have taken pride in the resilience and unity that they have demonstrated as a community. Memorials and messages of support were placed throughout the neighborhoods and enclaves surrounding Marjory Stoneman Douglas High School, and signs reading "Parkland Strong" and "#MSDStrong" became ubiquitous.

However, at the home of Donna Ali, whose daughter is a student at the high school, the Parkland Golf & Country Club HOA had requested that her "Parkland Strong" yard sign as well as those of some of her neighbors should be removed.

According to a report by WPLG-ABC Channel 10, the HOA sent an email to residents reading: "In keeping with the memorial plans, the community relations committee is asking residents that have shown solidarity with the MSD family by placing memorials in their yard to take them down by Nov. 15." The community is apparently working on installing a permanent memorial, which is expected to be completed by February.

After hearing about the station’s report, the board of directors of the HOA distributed a news release stating that the signs will now be allowed to stay up until the permanent memorial has been completed. It reads: "The board immediately decided to suspend the removal request until the permanent memorial is complete as our community does not want to bring any additional pain to anyone, especially an MSD student."

The HOA’s quick response to the media attention and its effort to mitigate the damage by revoking its request and allowing the yard signs to stay should be applauded. However, community association boards may find it difficult to balance their desire to empathize with residents seeking to commemorate a community-wide trying moment with their obligation to enforce the provisions of their governing documents. Such occasions should occur sparingly and in pursuing similar efforts, community association board members should work with qualified community association legal counsel to carefully communicate to the residents and owners the basis and duration for any departures from the restrictions. In this situation, once the community’s memorial is set in place, the board will likely need to explain to the homeowners that the association’s rules must be fairly and uniformly applied in order for the board to be effective in maintaining the property values for all the community’s owners.

Other associations finding themselves in similar straits, for instance, with the requested removal of yard signs should consult with qualified and experienced community association counsel in order to find a middle ground that would appease the interests of both sides. Perhaps limiting the size of the signs, the timeframe during which they may be displayed in the aftermath of incidents, and their placement near the front porches of homes could enable association boards to enact rules conceding some limited use of signs.

Compromises such as these may enable associations to avoid confrontations while still maintaining an adequate level of civility, compassion and control over the enforcement of their rules and restrictions.

 

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(11-21-18)

Florida Condominium Association Website Requirements to Take Effect Jan. 1

By Michael E Chapnick

Earlier this year, the Florida legislature passed an important update to the new condominium association website requirements that the state’s lawmakers codified during the 2017 legislative session. The most important change was to extend the deadline for associations to launch their websites from July 1, 2018 to Jan. 1, 2019, providing condominiums and their property managers with an additional six months to develop and launch their sites.

In addition, the new website requirement no longer applies to multi-condominium associations with combined totals in excess of 150 units if none of individual condominium properties operated by the association contains 150 or more units.

The 2018 statutory amendments also changed some of the posting requirements to allow for the posting of summaries of certain documents rather than the documents themselves. The official records that must be posted on the new websites also now include monthly income or expense statements as well as all bids in excess of $500 received from vendors during the past year for materials, equipment or services.

It is important for associations to recognize that the website posting requirements do not negate other statutory requirements, including the posting and mailing of notices. They simply add to them.

With the Jan. 1 deadline now just a little over a month away, Florida condominium associations (excluding timeshares) with 150 or more units should be well on their way to developing and finalizing their websites. They should designate who will be in charge of uploading and updating the required documents, and they should also consult with qualified and experienced community association attorneys to ensure that compliance with the statutory requirements is achieved.

 

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(11-7-18)

Golf Cart Liability Issues for HOAs Exposed by Accident Involving Teens in Florida Community

By Laura M. Manning

The recent news about an accident inside G.L. Homes’ Seven Bridges community in Delray Beach involving four children on a golf cart highlights the potential legal liabilities for Florida associations concerning kids driving golf carts.

According to a report by BocaNewsNow.com, four children were riding a 2014 EZ Go "Freedom" Golf Cart on the community’s main street when the unlicensed 15-year-old girl driving the cart darted in front of an oncoming car. The car, which was driven by Sunny Isles resident Eduard Hiutin, crashed into the golf cart, causing its driver and passengers, ages 11, 13, 14 and 15, to be ejected onto the street. The children were transported by ambulance to the trauma unit at Delray Medical Center, where one was treated for a catastrophic injury.

The golf cart driver, who lives in the community along with two of the other children, was charged with operating a motor vehicle in a careless or negligent manner as well as failure to yield to the right of way.

While the parent of the golf cart driver can be sued for negligence in such a case, the association can also be named as a defendant. In fact, according to the Seven Bridges community’s governing documents filed with the clerk of courts, Seven Bridges requires a golf cart driver to be at least 16 years old and carry a valid driver’s license. If enforcement of this rule was lax, potential liability could be alleged.

Typically, insurance companies and lawyers representing the injured in any golf cart crash will investigate every aspect of the incident. They will look into the association’s actions and warnings to enforce its rules involving underage cart drivers, and whether any notices had previously been sent to either the driver or their parents. They will also explore the actions of the parent/owner of the vehicle.

Florida law states that golf cart drivers may be as young as 14, so long as the cart is being driven in a private community that is registered with the Florida Department of Transportation as a "Golf Cart" community. Essentially, this enables gated communities to set and enforce their own rules regarding the minimum age and driver’s license requirements for cart drivers.

For communities such as the one in this case in which golf carts are prevalent, associations must develop and enforce their own rules and restrictions for age and license requirements for drivers, and security must monitor and stop all offenders in order to provide effective enforcement. Otherwise, the community risks potentially significant exposure and legal liability in the event there is an accident involving an underage golf cart driver.

 

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(10-24-18)

Updated Methods for Preserving Association Governing Documents Under Marketable Record Title Act

By Roberto C. Blanch

The Florida Marketable Record Title Act (MRTA) re-quires HOAs to reaffirm and renew their covenants and restrictions 30 years after they were originally recorded in the local county records. MRTA was created to extinguish claims to property which are at least 30 years old in an effort to stabilize property law by clearing old defects from the chains of title to real property, limiting the period of record searches, and clearly defining marketability by extinguishing old interests of record.

One of the unintended consequences of the Act is that the declarations of covenants, conditions and restrictions recorded by HOAs may be set to expire after 30 years of the date in which they were recorded. Keep in mind that for most HOAs, if the residents are no longer compelled to act in accordance with the community’s declaration, the results could be catastrophic for the associations’ administration and finances.

The Florida legislature passed a law earlier this year to update the process for HOAs to renew and preserve their covenants and restrictions under MRTA in order to keep them in place after the 30-year term. Under the new law, which is now in effect, at any time during the 30-year period following the effective date of the title for the covenants and restrictions of a community association, the association may preserve and protect those covenants or restrictions from extinguishment by following more simplified filing procedures which include the following:

• The filing of a written notice in accordance with Section 712.06 (similar to prior requirements); or

• The filing of a summary notice as required under Section 720.3032(2); or

• The filing of an amendment to a community covenant or restriction that is indexed under the legal name of the property owners’ association and references the recording information of the covenant or restriction to be preserved.

The summary notice must have the legal name, mailing address and physical address of the association; the names of the affected subdivision plats and condominiums or, if not applicable, the common name of the community; the name, address and telephone number for the current community association management company or community association manager, if any; indication as to whether the association desires to preserve the covenants or restrictions affecting the community or association from extinguishment under MRTA; a listing by name and recording information of those covenants or restrictions affecting the community which the association desires to be preserved from extinguishment; the legal description of the community affected by the covenants or restrictions, which may be satisfied by a reference to a recorded plat; and the signature of a duly authorized officer of the association, acknowledged in the same manner as deeds are acknowledged for record.

The signed notice must be recorded in the official records of the clerk of the circuit court or other recorder for the county, and a copy must be included as part of the next notice of meeting or other mailing sent to all association members.

The new law also stipulates that governing documents can be preserved by a recorded amendment under certain conditions, but amendments recorded prior to the effective date of the new statute may not qualify for preservation purposes.

The new amendments to the MRTA statutes will help many associations to streamline the process for the preservation of their governing documents. However, it is imperative for associations to consult with highly qualified and experienced legal counsel in order to ensure that they select and utilize the best possible method for their specific needs.

 

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(10-10-18)

Couple Convicted, Sentenced in HOA Fraud Scheme in Lantana

By Michael E. Chapnick

A Lantana couple that had been arrested for defrauding their homeowners association were recently found guilty and hit with a severe jail sentence and restitution order. The judge in the case found William and Darlene Cox, the former president and treasurer of Lantana Homes HOA (respectively), guilty of embezzling from the association that they helped to lead.

William Cox was sentenced to three years in state prison, while Darlene Cox was placed on probation for five years, the first of which must be served with a monitor. They were also ordered to pay more than $360,000 in restitution to the HOA.

According to a report by CBS 12 News in West Palm Beach, the current leaders of the HOA are frustrated because Darlene Cox is still living in the community. She remains a neighbor amongst all of those she defrauded and robbed.

Darlene and her husband were arrested in November 2016 after the current board discovered financial discrepancies in the association’s accounts. According to the arrest report, the two were accused of taking the HOA funds and using the money to pay their personal car insurance as well as their homeowners and life insurance premiums.

After the change in the laws governing condominium associations and HOAs last year focusing on antifraud measures and avoiding conflicts of interest among board members, Florida law enforcement has been issued a mandate to take cases of association fraud extremely seriously and give them the resources they deserve.

Cases such as this illustrate the importance for associations to use effective precautions and safeguards in order to help ensure that they do not become a victim. These include monthly reviews of all bank and credit card statements by at least two people, ideally including both a board member and management staff. There should also be an annual audit by experienced and reputable accountants to provide a careful review and independent certification of the validity of all financial records.

Together with the proper safeguards and vigilance in order to help prevent theft, fraud and abuse by association and management employees, the criminal penalties prescribed by the state’s new condo fraud law have now made associations better equipped to engage law enforcement than ever before.

 

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(9-26-18)

Let Reason Dictate in Restrictions of Commercial Activity by Community Associations Against Residents

By Laura M. Manning

Many associations’ governing documents include clauses that prohibit commercial business activities from being conducted in a resident’s unit. Some include a blanket stipulation banning commercial activity altogether, while others make a distinction between permissible and impermissible activities. While it makes sense for associations to want to regulate and restrict businesses from operating within their communities, HOAs and condominium associations should take a prudent approach that is guided by reason.

When considering how to regulate and enforce restrictions against commercial activities, associations should focus on the impact that particular activities have on the community and the quality of life of those who make it their home. Today’s technology allows for a great deal of work to be done from home with no disruptions whatsoever to the community at large. Rather than attempting to ban all commercial activities in a community, the better option is to specifically delineate in the governing documents the types of activities that are not allowed.

Some of the activities that communities wish to ban are those that entail significant vehicular traffic, including from clients as well as vendors and delivery vehicles. The stockpiling of chemicals or other flammable/hazardous materials in residences and garages is also a concern, as is the number of commercial vehicles being parked in the driveways and parking areas in front of homes.

Rather than attempting to impose a blanket restriction on all commercial activities, which is impossible to enforce given that many people are able to work very effectively and discretely from their home offices, associations should consult with highly experienced and qualified community association attorneys to develop and implement reasonable restrictions that make sense and can be effectively enforced.

 

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(9-12-18)

Fight Over $20,000 Special Assessment Illustrates Worst-Case Scenario for Community Association Financial Planning

By Roberto C. Blanch

A recent report by the Jacksonville, Fla., ABC network affiliate exemplifies the calamitous results that can ensue when condominium associations and HOAs are inadequately prepared to meet the long-term maintenance needs of their communities. The station chronicled the battle that is taking place at the Fountain Gate Condominium, which is composed of a number of buildings that were originally built in the 1980s and now need their wood siding replaced.

According to the report, the association’s board of directors has approved the procurement of a bank loan for $1.5 million for the project. It would be repaid by imposing a special assessment of approximately $20,000 per unit, to be paid monthly over seven years.

One of the directors on the association’s board, Jody Kilgore is against the special assessment proposal, which met with an immediate backlash by the unit owners. She is quoted in the report saying that the owners, who are mainly retirees in their 70s and 80s on fixed incomes, "feel like we’re being railroaded."

She goes on to say that the unit owners are being left out of the decision-making process, explaining that Florida law requires the approval of 75 percent of the owners for material changes such as this repair project. Instead, she notes that the board of directors alone voted to approve the changes.

The unit owners have not taken it lying down. They have filed for a recall of the current board with the Florida Department of Business and Professional Regulation, which could result in replacing the directors and property management company.

The association’s attorney is also quoted in the story. He explains that the board has a fiduciary responsibility to maintain the property, and this situation represents a serious challenge. He notes that the repairs need to get done, and the board of directors has adhered to state law and its own governing documents by approving the project and special assessment via the board vote and without the approval of 75 percent of the entire association membership.

While the attorney may be correct, the disruptions and financial strains that this situation is causing at the community continue to take a heavy toll. In order to avoid the friction that results from the impact of funding long-deferred maintenance projects such as the one in this case, associations and their property management should consider planning for the future by establishing and funding reserve accounts for major maintenance and renovation projects, and by annually assessing their financial position to adjust their long-term strategies as needed.

In fact, condominium associations are statutorily required to fund such reserves and may only waive them by a vote of the owners. In many communities, owners vote to waive the required funding of reserves, resulting in the consequences encountered by the association in this case. In light of such consequences, Florida statutes were revised to require certain disclaimer language on voting documents intended to be used for owners’ meetings at which a vote to consider waiving reserve funding would be considered.

In addition to the foregoing, association directors and managers should consult with highly qualified and experienced professionals to consider their long-term financial planning decisions and the impacts that may be felt as a result of a waiver of reserve funding. These reports and discussions should take place during board meetings, and all association members should be encouraged to attend so as to stay informed and provide their input.

By applying these fairly straightforward best practices for associations to adequately prepare and plan for the funding of their future property maintenance and renovation needs, community association boards of directors and mangers may avoid the potential for serious outcries by the unit owners that may further spill over to public spats showcasing the discord in a community on the local evening TV news.

 

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(8-29-18)

Fair Housing Discrimination Suit Against Condo Association Offers Cautionary Tale on Overzealous Occupancy Restrictions

By Michael E. Chapnik

Condominium association boards of directors are al-ways considering measures to help maintain and enhance the quality of life of their community’s owners and residents. Some associations grow concerned about too many occupants per unit and the burden that additional residents place on a community’s amenities and services, so they decide to implement occupancy restrictions in order to limit the number of people residing in each unit.

However, as a Palm Beach County condominium recently found out, overly aggressive occupancy restrictions have the potential to run afoul of the federal Fair Housing Act bans on discriminatory housing practices against couples with children, and nonprofit housing agencies are willing and able to take up the case of aggrieved residents or proposed residents.

A fair housing advocacy group called the Fair Housing Center of the Greater Palm Beaches filed suit in federal court recently against the condominium association for the Fontana Condominium in Palm Beach as well as its president and property manager. The suit alleges that the defendants have discriminated against families, including those with minor children, by enacting and enforcing policies that limit the number of persons and children who may reside in the community’s units. It is seeking preliminary and injunctive relief as well as damages for the alleged discrimination against familial status in housing that violates the Fair Housing Act and the Civil Rights Act of 1968. The suit also seeks punitive damages, attorneys’ fees and a court order mandating that the defendants establish a victims’ fund for those were victimized by their discrimination.

The suit alleges that in 2010 the condominium community adopted a two-person maximum occupancy restriction for all of its units, which each have two bedrooms. It states that the occupancy policy of the U.S. Department of Housing and Urban Development adopted in 1998 holds that two occupants per bedroom is deemed to be reasonable under the Fair Housing Act. The suit also alleges that the two-person limit imposed by the condominium violates the local occupancy code in Palm Beach County, and the policy resulted in familial status discrimination when it was used to deny the tenancy of a couple with their infant child.

From a cursory review of the 16-page complaint, the plaintiffs appear to have a strong case against the association and its management, which will likely incur significant expenses in their defense. The end result will be a significant amount of legal and financial hardships for the community, all of which it may have been able to avoid by first consulting with highly qualified and experienced legal counsel prior to implementing the two-person occupancy restriction for its two-bedroom residences.

Condominium associations in Florida and across the country should take note of this case, as it illustrates the potential pitfalls that can come as result of overzealous occupancy restrictions.

 

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(8-15-18)

HOA’s Tree Trimming Leads to Code

Enforcement Nightmare

By Laura M. Manning

One of the key takeaways from Hurricane Irma was a reminder about the importance of keeping trees properly trimmed in order to avoid damage to power lines from downed foliage. However, a recent report by Channel 7 News (Fox) in South Florida about a Hallandale Beach HOA’s troubles with the city over its allegedly exorbitant tree trimming serves as a cautionary tale for all Florida community associations.

According to the report, the insurance company for the Hallandale Village Homeowners Association asked association president Richard Masone to trim the trees around the property at the start of this year’s hurricane season. Masone complied and asked the association’s regular landscape maintenance company to trim the trees.

The job pleased the community’s insurer, but Hallandale Beach Code Enforcement officers were not happy with the tree trimming. City Manager Roger Carlton called the trimming unacceptable, noting that it "enormously exceeded any reasonable amount."

The association was told by the city that the trees were "hatracked," or over-trimmed, and they ordered the community to dig up and replace the trees, which entails hiring an arborist and pulling permits for each of the 10-15 trees that would need to be replaced.

Masone indicates in the station’s report that this has been a learning experience, and the association’s attorney has written to the landscaping company seeking its cooperation. He hopes that the company, which is licensed by Broward Country, will replace the trees, and notes that its representatives had indicated that they knew the proper way to do the job.

The company did not return Masone’s calls, but it will need to take part in the investigation that Broward County officials have indicated they intend to open after they receive an affidavit from the city of Hallandale Beach.

As the association president indicates in the news report, this has been a learning experience for his HOA, and it certainly also offers an important lesson for all Florida community associations that are planning to have their trees trimmed. Many local municipalities keep a watchful eye for excessive tree trimming that detracts from the verdant aesthetics of their neighborhoods. Associations should work exclusively with licensed and insured landscaping companies, and they should consult with experienced legal counsel to help ensure that they are properly indemnified from liability resulting from excessive trimming under their contracts with these vendors.

 

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(8-1-18)

Unit Owner Charged with Attempted Murder, Arson in Plot to Burn Down Condo Tower

By Roberto C. Blanch

The recent news report by CBS4 Miami about a Miami Beach man who was charged with attempted murder and attempted arson for plotting to burn down his condo building should serve as a wake-up call for all condominium associations in Florida and across the country. It appears to be a case in which the warning signs may have triggered a call to authorities that averted a horrific tragedy just in the nick of time.

The report states witnesses told police that Walter Stolper, 72, had shown aggression toward his fellow residents and the members of the association’s board of directors at their building at 56th Street and Collins Avenue. As a result, he was facing an eviction action.

The breaking point for the initial call to authorities came when Stolper spoke with his friend Luis Diaz, who states in the station’s report: "He told me he was tired of the association and the Jews in the building and he wanted to do something about it. He said he wanted to burn down the building. At first, I didn’t think he was serious, but then I heard him talk about blocking the fire department and their hoses, I realized he was serious and I had to do something."

Diaz contacted the management office at the building, and the management called the police. Detectives went to the property, searched a storage room belonging to Stolper and found 28 containers with gasoline, sulfur powder and potassium nitrate. He was later intercepted by police with two filled gasoline tanks as he was coming back into the building, where he had already disposed of eight additional gasoline canisters down the trash chute from the 15th floor.

When the officers arrived at the building, they could smell gasoline, and a resident and security guard also reported strong odors of gas in the hallways and elevators. Inside of Stolper’s 15th-floor residence, the officers found Nazi reading material as well as a swastika and two firearms. Police also said he had purchased two electrical fans to fan the flames as well as padlocks to place on a nearby firehose cabinet in order to keep firefighters from accessing it. He had also destroyed some of the building’s smoke detectors.

Stolper was arrested and charged with attempted murder and attempted arson. "We do believe that we were minutes away from a potentially deadly situation," explained Miami Beach Police spokesman Ernesto Rodriguez in the TV station’s report.

Thankfully, this incident ended peacefully without any injuries or property damage, and the board members and unit owners at the Miami Beach tower can breathe a sigh of relief after averting a potential tragedy.

However, this case should serve as an important reminder for community associations and property managers in condominium and HOA communities throughout the country. Disgruntled or mentally ill unit owners may pose serious and potentially fatal dangers for their fellow neighbors. It is incumbent upon community association directors, property management and those who reside in community associations to exercise prudent vigilance and report any suspicious activities. By remaining vigilant and using sound judgment as to alerting law enforcement, communities with associations are able to help avert potential tragedies such as the one that was being hatched in this recent case.

 

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(7-18-18)

Property Insurance Claim Denied?

Try, Try Again

By Michael Chapnick

After Hurricane Irma made landfall in Florida last year, many property owners were surprised at how unfamiliar they were with the property insurance claim process – mainly because of Florida’s remarkable hurricane-free streak. However, the 2017 Atlantic hurricane season marked the end of that winning stretch, catapulting many Floridians who experienced property damage into insurance claim purgatory.

By now, community associations, business owners and homeowners who filed a claim relating to Hurricane Irma damage should have heard back from their insurer as to whether their claim was denied, determined to be under the deductible or fully covered. For many policyholders, their insurer’s coverage decision came back as a disappointing slap in the face, leaving them as discouraged as they felt after receiving the pricey estimates for their repair costs.

If you are one of the many whose insurance claim got flat-out denied, received a letter indicating your claim was below your insurance policy’s deductible, or you received just a fraction of what it will actually cost to repair and rebuild your property, know that you are not alone. The grueling, long battle to restore your home or business may be far from over, but highly qualified and experienced insurance attorneys and independent adjusters are able to help you fight the good fight.

For the past couple of months, our firm’s attorneys have served as advocates for clients whose recovery efforts fell short of the actual repair costs. We have been able to recover millions of dollars for community associations, business owners and homeowners who chose not to give up and fought relentlessly to return their property to its original condition.

Policyholders need to understand that their insurer’s coverage decision is not final, and it may well be subject to challenge. We encourage anyone who received a denial letter, were told that the claim was below their deductible, or were unable to repair the damage caused by Hurricane Irma to obtain a second opinion and consult with an experienced attorney. It is likely that these insureds are entitled to receive additional money for their repair costs.

Though the road to recovery is filled with uncertainty and complexities, qualified attorneys can help you navigate the aftermath and become whole again.

 

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(7-4-18)

Size Matters: Should Your Condo Super-Size Its Board of Directors?

By Laura M. Manning

For many condominium associations in Florida, the amount of board members serving on a board of directors is usually dictated by the association’s governing documents or bylaws. There are associations, however, whose documents are silent on the number of directors that can be elected. In the absence of such a provision, condominium associations would have to refer to Chapter 718, Florida Statutes, which provides that a board of administration of a condominium shall be composed of five members. For those bylaws that do include language with specifications regarding a board’s size, the average number of board members serving typically ranges from three to five board members. But is there an ideal size?

While there is no "right" size for a board of directors, community associations that are considering decreasing or increasing their existing board’s size should always evaluate the pros and cons of doing so. It is possible for a board to be either too big or too small. For example, associations that typically have a great deal of qualified candidates running for seats on the board might contemplate increasing their board’s size to accommodate those applicants, while benefiting from the value that each individual brings and the efficiency that comes with working in a bigger group.

However, there also may be unintended consequences of increasing the number of directors on a board. For instance, obtaining a quorum for the meeting requires the presence of a greater number of directors, or having to discuss and consider board action with additional opinions can prolong decision making, thus causing a board to be inefficient.

By the same token, boards with fewer directors are faced with a different set of challenges. For example, elected board members that fall off the radar or abandon their position can make it impossible for a board to move forward and take action with respect to association business.

Additionally, a three-person board needs to be mindful that one-on-one interactions between directors regarding association business may be prohibited by "sunshine laws" outside of properly noticed board meetings, as two directors would constitute a quorum.

It is important for condominium associations to evaluate their reasoning for wanting to change their board’s size prior to making any definitive changes. In doing so, they might realize that their existing size is just right, after all.

 

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(6-20-18)

HUD Expected to Issue Revised Guidance on Requests for Emotional Support Animals

By Roberto C. Blanche

Some good news for community associations struggling with questionable requests for the approval of emotional support animals: The Department of Housing and Urban Development is expected to issue revised guidelines later this year focusing on ESA requests and approvals. According to The National Association of Realtors, the new guidelines should give landlords, property managers and community associations greater authority to verify that the need for such an animal is legitimate.

The NAR reports it has had separate conversations with HUD and disability rights groups. Senior Policy Representative Megan Booth recently told attendees at a conference that the disability rights groups have expressed concerns over the widespread abuse of requests for companion animals, as they believe it is already making it more difficult for residents with legitimate needs to receive the approvals they require.

It appears that the new HUD guidance will be specifically aimed at curtailing the use of online ESA certification mills.

"HUD is willing to put a caveat [into their guidelines] that tenants must have a letter from a licensed health care provider that they have a demonstrated ongoing professional relationship with, not just on the internet," Booth said. She concluded that landlords, property managers and associations would be permitted to call the health care provider to verify their relationship, and hopefully there will be language further clarifying what constitutes a reasonable accommodation for ESAs.

While some argue that there are many legitimate psychological and emotional disabilities that benefit from the use of emotional support animals, unfortunately the rules governing ESAs are frequently abused in order to circumvent legitimate community association pet restrictions. In fact, a cursory search of "emotional support dog" on Google produced more than five million results and provided links to multitudes of kits with "emotional support dog certifications" for sale.

Given the growing popularity of requests for emotional support dogs and other animals for both legitimate and illegitimate disabilities, community associations with pet restrictions should work closely with highly experienced legal counsel in order to avoid any potential legal liabilities stemming from denials of these requests.

 

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(6-6-18)

Associations Should Keep Board Meeting Minutes Succinct, Non-Political

By Michael E. Chapnick

One of the changes to the Florida condominium laws from this year’s legislative session that are set to take effect on July 1 is the mandate that the minutes of all condominium association board meetings must now be kept permanently as opposed to seven years, as the law previously held. This new requirement should not present any difficulties for the state’s condo associations, as recording the meeting minutes and keeping them available for inspection as state law requires are basic functions of association administration.

The minutes of association board meetings must reflect all of the votes or abstentions of the directors in attendance. They are extremely useful association records for those who wish to gain an understanding for all of their association’s undertakings and decisions over a period of time.

Associations should record their meeting minutes in a well organized and uniform format, and the information should be very brief and to the point. The minutes should reflect the format and topics from the meeting agenda, and many associations break them down into standard sections for attendees, reports, old business, new business and others.

Meeting minutes should avoid lengthy explanations and detailed descriptions based on board member discussions that take place prior to votes. A simple note indicating that a matter was discussed by the board members prior to a vote is sufficient to inform readers that a discussion took place. Furthermore, the record should reflect motions made, by whom, whether or not the motions were seconded, and the outcomes.

Directors will often disagree over association business, but they should avoid politicizing the meeting minutes by using them to provide a high level of detail about their opposing viewpoints. The minutes should not be slanted to favor one option over the other; they should only be used to document what was discussed and decided in a succinct manner.

By adopting a uniform format for the board meeting minutes and including only a brief documentation of the issues discussed and decisions made, the meeting minutes will become effective association records that are simple to record and maintain for future review.

 

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(5-23-18)

New Law Gives Condominium Owners Green Light for Electric Vehicle Charging Stations

By Laura M. Manning

With their eco-friendly promise to Mother Nature, electric vehicles have gained popularity among U.S. consumers and policymakers alike, and auto industry giants are predicting even further growth for this high-tech and environmentally-friendly segment of the market in the future. Notwithstanding the growth thus far, one of the challenges that has been potentially inhibiting the greater dispersion of electric vehicles throughout Florida has been the lack of clarity in the law with respect to the installation and use of electric-vehicle charging stations within condominium communities. However, the Florida Legislature recently passed a new law facilitating an owner’s capacity to install and use an electric-vehicle charging station within their condominium building that will surely ameliorate some of these challenges.

Before adoption of the new law, and as a result of the potential legal, engineering and financial liabilities that would result from the installation of electric-vehicle charging stations on a large scale, many boards of directors raised questions regarding the proper method to facilitate owners’ requests to install electric-vehicle charging stations within condominium building parking garages. The new addition to Florida’s condominium association laws provides clarity to some of these questions.

Specifically, the new law stipulates that a declaration of condominium may not be enforced to prohibit a unit owner from installing an electric-vehicle charging station at their own cost and within the boundaries of their designated parking space. However, an association may require that the installation comply with all applicable building codes, recognized safety standards, and reasonable architectural standards that it adopts. The law also shields condominium associations from construction liens resulting from the installation of charging stations by unit owners; although liens may be filed against the owners installing such stations.

The new legislation further provides that the installation of electric-vehicle charging stations may not cause irreparable damage to the association’s property, and the electricity consumed on account of the charging station must be separately metered and payable by the unit owner who installed such station. In addition to paying for the installation and electricity costs, the installing owner will also be responsible for any hazard caused by the charging station, for any liability insurance on the charging station, and for any increased insurance premium to the association’s insurance coverage attributable to the charging station.

On account of the new law, and rather than waiting for unit owners to request installation of electric-vehicle charging stations within their parking areas, some association boards of directors are now considering installing charging stations, with built-in usage tracking and billing features, in designated areas within their condominium buildings’ parking garages. While determining the location of these charging stations and the administration of their use may present challenges for some associations, the added appeal and marketability of having electric-vehicle charging stations installed as a convenience for all owners, residents, and guests could offset these burdens and enhance property values for all owners.

As the use of electric vehicles continues to grow, progressive-minded condominium association boards of directors that embrace this technology and "go green," either by installing electric-vehicle charging stations within their parking garages or by developing a plan-of-action to administer owners’ requests for the installation and use of such charging stations in line with the new law, may gain a significant marketing edge in providing such convenience to their unit owners.

 

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(5-9-18)

$20 Million Verdict Against HOA for Playground Injury Serves as Industry Wake-Up Call

By Roberto C. Blanch

For many Florida residents, the appeal of living in con-dominium and homeowners’ associations is partly due to the many types of shared amenities and recreational facilities that these communities provide and maintain for the enjoyment of all residents and their guests. Swimming pools, tennis courts, playgrounds, fitness centers, and social rooms are only a few examples of the common elements or areas made available in community associations to enhance the residents’ quality of life.

While these amenities provide significant benefits, they also come with important responsibilities for the association with respect to maintenance and upkeep. These maintenance responsibilities must be taken seriously, as severe injuries from a lack of proper maintenance can occur and may expose an association to considerable liability.

One of the most telling examples of the potential ramifications of improper maintenance of recreational amenities came in the $20 million verdict that a Las Vegas jury reached earlier this year after a teenager suffered severe brain injuries from a swing set collapsing on his head at the Lamplight Village gated community. In that case, stemming from an incident that occurred in 2013, a crossbar located on the association’s common-area swing set had corroded and worn badly at the connection points. As a result, the 42-pound crossbar fell on a 15 year-old boy’s head while he was using the swing set, causing significant brain injuries.

Reportedly, the association believed that the three-year old swing set was new enough that maintenance was not yet warranted, and it did not perform any regular maintenance or inspection of the equipment.

Recently, the case concluded and the jury awarded $20 million to the victim, $10 million of which in punitive damages. However, as the association only carries $2 million in liability insurance coverage, the association and its owners have been financially distressed by the case, and owners are considering suing the association for failing to alert them of pending litigation or settlement offers that have affected their property values and their obligation to financially support the association.

Court records show that Lamplight Village was offered multiple settlement offers, initially for less than $1 million dollars, but these offers were declined by the association. Some of the community’s homeowners have told reporters that the association lied to them, refusing to tell them about pending litigation for the past five years. They said they are now afraid of the possibility that they will lose their homes as a result of their obligation to financially support the association in meeting the jury’s award.

The attorney representing Lamplight Village said the association will be appealing the jury’s decision to the Nevada Supreme Court.

There is a very important lesson in the case of this tragic injury and the resulting litigation for all community associations across the country with recreational amenities that could result in injury if they are not properly maintained. Associations must apply reasonable vigilance in maintaining and inspecting all such community recreational facilities. An association’s maintenance obligation includes regularly scheduled periodic inspections, followed by performing all appropriate and necessary maintenance and replacement procedures, including recommendations from the manufacturers of the equipment within the recreational facilities, to ensure that the equipment is kept in safe working condition. In addition, user weight and size restrictions, or limitations on the hours during which facilities or equipment may be used, could also help to potentially limit legal liability should an injury occur.

As this Las Vegas case demonstrates, associations must take the maintenance and upkeep of their recreational equipment and facilities just as seriously as they do for their roofs, structural elements and plumbing elements. All of the property and equipment within community associations wear down over time, and it is the association’s responsibility to ensure that reasonable care is taken to protect the equipment and facilities for the safe use by residents and guests.

 

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(4-25-18)

Arbitration Not Required for Suit Alleging Breach of Fiduciary Duty by Association Directors

By Michael E. Chapnick

While most garden-variety disputes between unit owners and their condominium associations are mandated by law to go to nonbinding arbitration before going to court, certain types of more complex disagreements are specifically excluded from this requirement and can proceed straight to trial.

The latest ruling over whether a dispute between an owner and a condominium association involving an addition to a common element was required to first go to arbitration before trial came in the case of Palisades Owners’ Association v. Thomas F. Browning before Florida’s First District Court of Appeal.

Dan Phillips and Jamey Phillips, who each own a unit in the Palisades condominium in Panama City, Fla. and serve on the association’s board of directors, added a boat lift to the community’s dock in 2016 for their exclusive use without prior approval from the other unit owners. As a result, unit owner Thomas F. Browning sued the association, which moved to dismiss the suit based on the contention that it must first be submitted to nonbinding arbitration in accordance with The Condominium Act.

Because the complaint included claims of breach of fiduciary duty by the association, the trial court concluded that Browning’s claims were specifically excluded from the class of disagreements required to be submitted to arbitration under the law.

In its review of the lower court’s decision, the First DCA found that any alteration to the community’s common elements requires the approval of at least three-fourths of all of the unit owners, according to the community’s bylaws. In response to Browning’s initial complaint to the board that the unapproved boat lift violated the community’s bylaws and must be removed, the directors (including Jamey Phillips) voted to amend the community’s by-laws to allow for temporary personal boat docks.

Browning subsequently sued the association, which responded by asserting that the dispute was subject to the alternate dispute resolution procedures provided under The Condominium Act before going to court.

In confirming the trial court’s decision, the appellate panel found that Browning’s complaint did not allege a dispute within the meaning of section 718.1255, Florida Statutes, and therefore he was not required to submit his claim to arbitration prior to filing suit in court. Its conclusion is based on the clear and unambiguous language in the statute specifically excluding from the definition of dispute several categories of more complex disagreements between unit owners and condominium associations including title claims, interpretation or enforcement of a warranty, fee assessments, evictions, breaches of fiduciary duty, and claims for damages for failure to maintain common areas.

The panel concluded that the suit goes beyond a factual dispute about changes to the common areas and alleges a breach of fiduciary duty by the association through the action of two of its board members, conflicts of interest, and violations of the bylaws. Because the complaint alleges a "breach of fiduciary duty by one or more directors," the appellate court upheld the trial court’s ruling that the disagreement does not fall within the statutory definition of a dispute that must be submitted to arbitration before filing suit.

This ruling illustrates how directors who implement changes to the common elements for their own personal benefit without prior membership approval in accordance with their community’s bylaws will not be shielded from potentially costly litigation by the state law requiring pre-trial arbitration. Disputes involving such actions will typically include allegations of breaches of fiduciary duty, making them specifically excluded from the arbitration mandate.

 

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(4-11-18)

Community Association Directors Must Be

 Cognizant of "Sunshine Laws" for Meetings,

Discussions of Association Business

By Laura M. Manning

Just as with the "sunshine" laws mandating public access to the decision-making processes within the state government of Florida, community associations have similar laws in place in order to ensure that unit owners are able to observe and participate in their governance. These laws, which include the owners’ right to attend and record meetings of the board of directors, and to speak on agenda items at those meetings, come into play in the association context when a quorum of the board of directors is discussing association business. Directors must always remain mindful of the fact that they should avoid discussing association business or making decisions which affect the association outside of properly noticed meetings.

The laws for both condominium and homeowners’ associations suggest that if a quorum of the board is present and association business is being discussed, then the gathering constitutes a board meeting that should be open to the entire membership. Consequently, for associations with a three-person board of directors, this means that any conversations about association business between board members that takes place outside of the official meetings should be avoided, since two directors constitute a majority of the board and a quorum.

Directors must always bear in mind that if a quorum of them are together at any gathering, any discussion of association business should be tabled for an upcoming properly noticed board meeting. This is not to say that board members may not speak to each other in social settings, but discussion of association business or making decisions that will affect the association should be avoided during those social gatherings. While this may seem to create a burdensome hurdle for directors in associations, especially those with three-person boards, it is necessary to uphold the "sunshine" laws governing community associations and ensure that board and committee discussions and decisions are open to membership participation.

 

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(3-28-18)

HOA Hires Private Investigator

to Catch Owners Conducting

Short-Term Rentals

By Roberto C. Blanch

Condominium associations and HOAs throughout South Florida as well as across the country are seeking effective responses to the problem of short-term rentals that are in violation of their rules and restrictions. These unauthorized rentals, which have become prevalent with the growth of Airbnb and other online home-sharing platforms, are creating significant security and liability concerns for associations.

One response by a San Diego homeowners association recently drew the attention of its local ABC affiliate, which chronicled how the community had retained a private investigator to gather and document incontrovertible proof that specific owners were conducting the restricted rentals. The licensed private detective and his associates were hired by the HOA and other local associations to investigate homeowners and tenants who are violating association bylaws and CC&Rs that prohibit turning units into short-term vacation rentals.

While the hiring of private detectives may initially seem as an extreme measure for an association, it makes sense when one considers the risks and concerns that are brought on by these rentals for HOAs and condominiums. Also, court actions may become necessary against some unit owners who flout the rules, and the evidence obtained by these investigators as well as their testimony can be very helpful in these proceedings.

In order to get away with these rentals, savvy owners have been known to sneak their transient guests into the property by advising security that their visit is authorized. As such, enhanced vigilance and guest-screening measures have become necessary, and many associations are now developing and implementing new registration forms for use with guests and tenants along with written assurances and noncompensation statements indicating that they are not paying for their stays.

In addition to the use of private detectives, the implementation of a clear fining or suspension policy, if permitted, is essential for associations to address unauthorized short-term rentals. This will typically entail the adoption of a new rule in which all of the fines and other consequences are delineated.

Community associations are also responding by adopting new amendments, bylaws or rules to limit the number of nights a residence may be rented, which can offer a level of flexibility for owners while also avoiding the possibility of creating a revolving door of unfettered short-term guests.

As the concerns created by the growth of short-term rentals continue to mount for community associations across the country, appropriate and effective responses such as these will help ameliorate the problem.

 

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(3-14-18)

Vigilance Necessary to Prevent Association Construction Workers Staying Overnight in Empty Units

By Michael E. Chapnick

A recent newspaper report about squatters in condo-minium units illustrates the level of vigilance that associations and their property management must employ to prevent any unauthorized uses of their residences.

The article in January by the Citrus County Chronicle documented the case that took place at The Islands condominiums in Crystal River, Fla. Work on the residences in the community became necessary due to extensive damage caused by Hurricane Hermine in September 2016, and it had been progressing well until several unit owners discovered workers were staying in the units without permission.

It began when one of the owners noticed wet floors near the shower and other indicators that the construction workers were not just replacing cabinets or working on the carpets. He and a neighbor later found workers sleeping overnight in the condo unit of another owner who did not know they were there, so they called the police.

According to a sheriff’s office incident report, the two workers said they were staying in the unit overnight to complete work the next day. They indicated the contractor that had employed them said they were allowed to do so.

A Sarasota-based contractor, Statewide Restoration Services was hired to make the units inhabitable, including renovations in plumbing, electrical and general contracting for 167 residences. The unit owners told the Chronicle that the workers admitted to deputies that they slept in some units without owners’ knowledge or permission, and showered in others.

The owners complained to the property management company, which alerted Statewide. The contractor subsequently informed all of its subcontractors that from now on they need to be off the premises soon after dark.

This story demonstrates the level of vigilance and wariness that is necessary to help ensure against unauthorized uses of units, especially when extensive renovation projects are underway and residences are being left unoccupied by their owners. Contractors that are retained by associations must be monitored closely by onsite management and security personnel, as well as board members and their fellow unit owners (as appropriate), to ensure that they are complying completely with the terms of their agreements. These agreements must include provisions requiring workers to wear identifying clothing, obey all of the association’s rules and regulations, and avoid accessing the property except during specified working hours and days of the week.

Associations that fail to prevent unauthorized uses of the residences in their communities by workers can expose themselves to potentially significant legal liabilities that may not be completely covered by their insurers. They must always keep a close and careful eye on the comings and goings of all those who are working at the property.

 

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(2-18-18)

Association’s Rule Requiring Residents to Keep Garage Doors Open Exemplifies Overzealousness That Harms Image of All Associations

By Laura M. Manning

Community associations often have to wrestle with challenging issues and areas of concern that can be extremely difficult to remedy. While directors are charged with developing appropriate rules and regulations to solve all of the difficulties that may arise, without the proper guidance from highly experienced and qualified management and legal professionals they can easily make the mistake of over-reaching with responses that wind up doing more harm than good.

Such appears to be the case with the California association that made national headlines recently for its reaction to its discovery that an owner was allowing tenants to reside in their converted garage. To address the problem, the association for Auburn Greens in Placer County taped notices on all of the residents’ doors informing them that their garage doors must be kept open from 8 a.m. to 4 p.m. Monday through Friday, effective immediately, with violations resulting in $200 fines and an administrative hearing.

As one would imagine, the outcry from residents was severe. Residents had legitimate security concerns about the rule, which left them without any effective means for protecting their belongings in their garages during the day.

As is often the case, it appears that some of the residents alerted journalists at a local television station about the dispute, and the station ultimately aired a story about the controversial new measure and how residents are opposing it.

In the station’s report, residents are quoted questioning the new rule and pointing out that it renders their garages relatively useless for protecting their cars and possessions. The station says that it made numerous attempts to contact those responsible for the new rule, but the directors of the Auburn Greens association had so far refused to comment.

This rule appears to be an overzealous attempt by the association to crack down on a problem area that can be difficult for associations to resolve. The issue of unauthorized leases and tenancies has become particularly troublesome during the last several years with the growth of Airbnb and similar websites facilitating short-term rentals.

It is a problem area that is difficult to resolve. Measures that some associations typically implement include increased security precautions including video cameras, and increased efforts by management and security staff to detect and address unauthorized tenancies as they arise.

However, while a rule such as the one in this case is probably well within the association’s powers to enact, it should never be considered as a viable response to the issue of unauthorized rentals. It could easily be found to be unreasonable by a judge if residents choose to challenge it in court, and it is likely to alienate the majority of the owners. In addition, it only addresses the use of garages and does not prevent owners from renting other parts of their homes.

In truth, this and other examples of unreasonable and burdensome new rules from association boards detract from a community’s reputation. Even worse is that any resulting negative media coverage also diminishes the image and perception of community associations by the general public.

Members of boards of directors need to understand that finding the most reasonable and effective solutions to some of the challenges facing community associations can be very difficult, and ideas such as this one that are unreasonable will almost always do more harm than good. The best approach for directors is to discuss difficult issues with highly qualified professionals, research how other associations are responding, determine the pros and cons of various responses including monetary costs, and finally make highly informed and well thought-out decisions.

In addition, if an association does find that it may have gone too far with a new rule and the outcry against it by the owners is severe, the best approach is usually to quickly rescind it and advise the residents that the topic and other new measures to address it will be discussed during the next board meeting. This will typically help to mitigate the damage and hopefully prevent the entire episode from playing out in the local media.

 

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(2-14-18)

Condo Should Weigh Pros and Cons of Variance for Dog Weighing Six Pounds Over Rule Limit

By Roberto C. Blanch

A recent Florida case involving a condominium association and the dog of a 70 year-old army veteran and widower drew national attention after it was covered initially in the Orlando Sentinel. The newspaper’s reports chronicle how the association for the Orange Tree Village condominium is attempting to ban the dog because it weighs 41 pounds, which is six more than the maximum weight under its rules, and it may be a banned breed.

As a result of the association’s decision, retired veteran Robert Brady filed a complaint with the U.S. Department of Housing and Urban Development after an arbitrator determined he had to surrender the dog by Jan. 11. The federal agency is now looking into whether the association can force the long-time resident to surrender his emotional support dog.

The attorney for Orange Tree Village said that his office has received calls sympathetic to Brady, but his client must enforce its rules that were established to keep residents safe. "If it’s not enforced and something happens, it’s a guarantee that the association will be named as a co-defendant in a case and have to contact the insurance company," he said in one report.

The article also notes that Brady lost his wife to cancer several years ago, and the case has drawn national attention after the newspaper published its initial story Dec. 23. Readers from around the country called and emailed to offer legal aid, alternative housing for Brady, and training for the dog. This included several groups specializing in training veterans’ dogs to become certified service animals.

One of the representatives of those organizations is Lauren Driscoll, a Palm Coast program director for the nonprofit Paws of War, which trains dogs for vets. "It’s so sad that just because the dog is a little bit overweight that they’re making it an issue," she said in a recent article. "This is the only thing this man has left in the world and it’s not hurting anyone."

The founder of Texas-based nonprofit Train a Dog, Save a Warrior, Bart Sherwood also offered free training to Brady’s dog via trainer affiliates in the Daytona Beach area. "We’re trying to show the [Veterans Administration] where these dogs cut costs and help bring vets to a balanced state rather than the vet taking drugs," he said.

Given the amount of negative publicity that this case is now generating for the Orange Tree Village condominium, certainly the association’s board of directors and legal counsel are now considering the issuance of a variance for Brady’s dog that would be contingent on the canine’s continued benign behavior, training as a support animal, and a veterinary determination that the bully-mix is not indeed a banned pit bull. It should also meet with its insurance broker in order to document to its liability carrier the extent to which the association has gone to vet the case and reach its decision.

Cases such as these can be extremely challenging for associations, which are dealing with explosive growth in requests for emotional support animals. While some requests may be highly suspect and dubious at best, this appears to be a case of a long-time resident whose dog has not previously demonstrated aggressive behavior.

In such cases, association boards of directors should work extremely closely with highly experienced legal counsel in order to conduct all of the necessary inquiries regarding the case. Among other requests, this would include a request for supporting material from a mental health professional who is caring for the pet owner.

Taking all of these formal steps and documenting them in the association’s meeting records from the onset will help to diminish any potential future liabilities while also demonstrating that the board will thoroughly investigate and reach a fair conclusion for every request for an emotional support animal that it receives. In addition, there is always the potential for negative publicity in such cases that could reflect poorly on the community, and avoiding such media coverage is always in keeping with the mission of association boards to maximize property values for all of the unit owners.

 

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(1-31-18)

Tackling Hoarding in Community Associations

By Michael E. Chapnick

Hoarding is becoming an increasingly common problem throughout the nation, especially for community associations where people are forced to cohabitate at close proximities. For association board members and property managers, it presents a challenging issue that should be addressed with sensitivity and discretion.

Depending on its gravity, hoarding can pose health and life-safety threats to fellow residents, causing foul odors and pest-control issues that spill over into hallways and neighboring units, as well as potential fire hazards. Despite being a nuisance, it is important to remember that compulsive hoarding is a disorder, one which usually implies some sort of mental health issue.

Should Accessing the Unit be the First Step?

Most condominium associations have a provision in their governing documents that mirrors the Florida Statutes and allows association representatives to enter a unit for emergency reasons and to prevent damage from being caused to other units and the common elements. A typical example of when this scenario comes into play would be to help resolve a water leak that is causing flooding or seepage.

Though it would seem like these provisions would give an association the authority to enter a unit in order to investigate if hoarding is taking place, we discourage boards from entering a unit (without the owner’s consent) on this basis, unless an actual and verifiable emergency exists. Entering units under false pretenses could expose an association to significant liability.

Instead, I strongly recommend that associations contact their managing agent and legal counsel to assist in discerning and implementing a plan to address the situation. This may begin with a violation notice letter advising the alleged "hoarder" of the concern regarding the possibility that damage to other units and the common elements could arise from such a condition, and giving them a deadline to either confirm that such hoarding is not taking place or eliminate it.

What if a Notice Doesn’t Solve Things?

Should the resident ignore the violation notice letter, it is recommended that associations enlist the help of government agencies to handle the enforcement. Agencies such as the health, fire and building departments, as well as city and/or county code enforcement, can step in and attempt to resolve the issue or, at the very least, inspect the unit and create a report that the association could then use if it is compelled to file a lawsuit against the hoarder.

The key for associations is to tread carefully when handling problems posed by hoarders — they are complex and oftentimes very difficult to solve. Bear in mind the old adage: One man’s trash is another man’s treasure.

 

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(1-17-18)

Condo Association Sues Unit Owners for Creating Nuisance

By Laura M. Manning

Our firm’s other community association attorneys and I are often called upon by association boards of directors and property managers with issues involving obstinate and disruptive unit owners who become a serious nuisance to directors, management and other residents. In such cases, after warnings, incident reports and fines have failed to have any effect, legal action can serve as an effective recourse.

Such appears to be the case in the recent lawsuit filed by the condominium association for The Mark Yacht Club on Brickell Bay in Miami-Dade Circuit Court. The association is suing Nuri Munis, Pelin Munis Cakov and Seda Munis, who own two units in the 36-story condo building, for putting the board of directors, property manager, staff and fellow residents through a hellish ordeal.

The suit contends that Nuri Munis and his relatives have engaged in a campaign to harass and intimidate condo association board members, property management employees and their fellow residents. The suit also states that the family stalks other residents and accuses them in a threatening manner of violating the association’s rules.

"Nuri Munis shows up to the management office unannounced and pushes other residents out of the way so that he can get immediate access to the manager. He repeatedly and rudely interferes with conversations taking place between management and other residents concerning personal matters," reads the complaint.

The suit alleges that during a five-week period, Munis made 21 unannounced visits to the property manager’s office without an appointment, and he sent incessant emails making unreasonable demands and asserting false accusations to the board members and property manager. The complaint seeks an injunction to stop him and his family from going to the property management office without an appointment, sending emails and harassing workers and residents.

Based on the allegations chronicled in the association’s complaint, a lawsuit of this nature seeking an injunction against a resident and his relatives to force them to cease their offending behavior appears to be entirely justified when the resident can’t be bothered with the rules or common decency. While it is generally best to avoid litigation whenever possible, in extreme cases such as this, litigation is sometimes the only truly effective option against recalcitrant owners and residents.

 

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(1-3-18)

Tackling the New Website Requirement for Florida Condominium Associations

'By Roberto C. Blanch

In accordance with a new Florida law, all of the state’s condominium associations with 150 or more units (not including timeshare properties) must have an independent website or web portal by July 1, 2018. Now is the time for all of the corresponding condo associations to begin taking the necessary steps to ensure that they will be in compliance by the deadline.

If an association utilizes a management company, the board of directors may wish to first reach out to the company to determine if it will be offering independent website or web portal services that comply with the new law. Bear in mind that the websites or web portals can either be wholly owned and operated by the association, or operated by a third-party provider.

However, even if an association’s management company will be providing such services, it is important for the association’s legal counsel to review the management contract in order to determine who owns the website and whether it confirms that all of the required documents will be included. If it is established that the management company will retain ownership of the site, the association’s attorney should then assess whether or not the agreement details the terms for transitioning the association’s website content. Ownership of the website will come into play if the association decides to terminate the management agreement, as the association may be accused of violating the law if such a termination causes the website to be shut down for any period of time.

As such, associations may wish to consider hosting their own independent website. If creating an in-house website proves to be too burdensome, we encourage associations to contract third-party providers that can develop a website or web portal which will comply with the stipulations under the new law.

Regardless of which option is chosen, association boards of directors should designate who will be in charge of uploading and updating the required documents to prevent any confusion or violation of the law in the future. It would also be to an association’s advantage to have its legal counsel review the website in order to help ensure that it is in compliance with the new law.

If you or your association’s representatives have any questions regarding this new legislation, we encourage you to email your inquiries to us at info@srhl-law.com.

 

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(12-20-17)

Signs by Homeowners in HOA Communities Cause a Stir That Can Be Avoided

By Michael E Chapnick

A fairly common problem area for homeowners association communities is the use of lawn signs by residents, especially during election season. When HOAs attempt to crack down on the use of signs in accordance with their governing documents, they sometimes become the subject of unfavorable media attention.

Such was the case recently in St. Cloud, Fla. near Orlando when an HOA’s battle with some of its homeowners over a yard sign supporting law enforcement became one of the lead stories by the local Fox Network television affiliate for Central Florida. According to the report, the Burgess family’s "Back the Blue" yard sign supporting the police in the wake of two Kissimmee officers being shot and killed in the line of duty became the subject of a major brouhaha with their association. Dozens of other residents began supporting them and displaying the same sign, which their association said had to go.

The report concluded by indicating that the homeowners planned to present their side at an upcoming meeting before the board of directors of the community, so the complete story of how this plays out is still to be continued.

The association in this case and others like it in similar straits would be well advised to work closely with highly qualified and experienced legal counsel in order to negotiate and find an equitable solution for both sides in disputes involving yard signs. They should apply a common sense approach, which should being by explaining to the homeowners displaying the signs that the association’s rules must be fairly and uniformly applied in order for them to be effective in maintaining the property values for all of the community’s owners.

That being said, associations should then be open to finding a middle ground that would appease both sides. For the association in the recent TV news report, perhaps limiting the size of the signs, the timeframe during which they may be displayed in the aftermath of incidents involving law enforcement, and their placement near the front porches of the homes could enable the board to enact a rule conceding some limited use of this and other similar signs.

This same approach also works for political signs during election season, and it is the type of compromise that can enable associations to avoid confrontations while still maintaining an adequate level of control over the use of signs in accordance with their rules.

 

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(12-6-17)

Dealing with Noisy Neighbors in

Condominium Communities

By Laura M. Manning

Does your neighbor’s loud music, barking dog or late-night television keep you up at night? Is your right to "peaceful possession" of your unit being infringed upon? If you live in a condominium building, quite possibly your answer is "yes." A recurring complaint that our firm’s other community association attorneys and I receive from condominium unit owners is that they are able to hear their neighbors through shared walls, floors and ceilings, followed by the frustration of feeling as if they have no recourse.

Here are some tips on how unit owners and their associations can deal with noisy neighbors:

Take a minute to think: Is this excessive noise?

Depending on the materials that were used to construct your condominium building, it is possible that the walls, floors and ceilings are to blame for hearing everything your neighbor says or does. From routine noises, such as walking or watching television, to noisier activities such as blasting music or operating loud appliances, the building’s construction may be the reason that noises become magnified in your place of retreat. If this is the case, the issue may be common throughout the building.

Take a minute to think about whether the noises which you find so irritating are intentional. Recognizing that your neighbor may be hearing the same type of commotion coming from your unit may provide a different perspective. Bear in mind that anyone can get carried away with an occasional party that runs late, or a loud action film after midnight. However, if your neighbor is creating excessive noise, and frequently at odd hours of the day, it may be necessary to take the next step and ask the association to take action.

Do Not Confront

While you may think that you are a reasonable person and it should be okay to knock on your neighbor’s door to ask them to keep the noise down, your best (and safest) bet is to report the problem through your building’s management personnel or security. The manager may send security professionals to the unit in an effort to try to resolve the situation, and you should ensure that the incident is properly documented via an incident report.

If excessive noise still persists after management and security have visited the unit, the association may impose a violation and/or fines against the resident causing the noise. Depending on the source of the noise, the association could require the resident to take some action to diminish or minimize the sounds being heard. Sometimes the simple addition of large area rugs in apartments with hard flooring reduces what seems like excessive noise but is really just the sound of everyday living.

If management, security, violation notices and fines do not stop a resident from making excessive noise that rises to the level of a nuisance – remember, there is no expectation of complete silence in condominium living – then unfortunately, it may be necessary to take legal action. Ultimately, when dealing with noisy neighbors, it is important to try to resolve the situation in the friendliest terms possible while not surrendering the serenity you deserve to enjoy in your home.

 

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(11-22-17)

New Legal Remedies Against Director Conflicts of Interest for Associations

By Michael Chapnick

In the pursuit of association fraud and embezzlement, one of the most important aspects of the major legislation that was adopted earlier this year is the law’s effort to curb conflicts of interest by association board members and officers.

The new law provides that presumptions of conflicts of interest exist in the following circumstances:

• A director, officer or one of their relatives enters into a contract for goods or services with the association.

• A director or officer . . . holds an interest in a corporation, LLC, LLP or other business entity that conducts business with the association or proposes to enter into a contract or other transaction with the association.

The law requires that directors and officers must disclose to the board any activity that may reasonably be construed to be a conflict of interest. The activity in question must then be properly noticed and put to a board vote. It will need to be listed in the meeting agenda, and all of the related contracts and transactional documents should be included with the agenda. The director/officer may attend the meeting and make a presentation to the board, but they must leave the meeting during any discussion and the ensuing vote.

The remaining members of the association’s board of directors will then need to vote on whether to allow the officer/director to remain on the board while engaging in the activity. If the board votes no, the director/officer must notify the board in writing of their intention to withdraw from office or cease the proposed activity.

Association officers/directors in situations which may be construed to be a conflict of interest would be well advised to disclose it in accordance with the new legislation. Unfortunately, if they do not disclose the matter, determining whether officers/directors "hold an interest" in companies that are contracted by an association can present some difficulties.

The good news is that the new law provides associations with legal recourse to address conflicts of interest when they are disclosed or detected. Because courts have not yet ruled on cases involving the rebuttable presumption of conflicts of interest for community association officers/directors under the newly amended statute, association directors and property management should consult closely with highly qualified and experienced legal counsel regarding the specifics of their circumstances.

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(11-8-17)

Condominium Workers Charged with Theft in Wake of New Fraud Law

By Roberto C. Blanch

Changes in condominium association laws that were recently enacted with an aim to curb fraud in associations seem to have had a strong impact in increasing the general awareness of the problems facing Florida condo communities. A few major media outlets have followed up on the news of the law with reports about arrests involving South Florida associations.

Several months ago the Miami Herald reported that the administrator of an Aventura condominium named Admirals Port had been arrested on charges of accepting thousands of dollars in bribes and stealing cash from the building’s laundry machines. Donovan Staley was charged with organized fraud, grand theft and the use of a phone to plan a crime, "Donovan Staley abused the trust of the condo directors and owners to line his own pockets," said State Attorney Katherine Fernandez Rundle at a news conference at the time. "We want the community to know that the new law is going to make a difference."

The Herald article indicates that authorities believe Staley asked an electrical firm working in the building to add $6,000 to the invoice and remit it to him in exchange for the community’s future business. There is also video of Staley allegedly taking money out of the community’s laundry machines, from which authorities say he stole more than $3,000.

A case involving the theft of valuables from a Singer Island condominium by one of the property’s maintenance employees was recently covered by the Fox television network affiliate for the Palm Beaches and Treasure Coast. Police tracked the unit owner’s gold bracelet engraved with his name and discovered that it had been pawned by Steven Kos, who was a maintenance worker with access to the keys for the units at the East Pointe Condominiums where the theft occurred. In addition to the bracelet, police also say that Kos pawned additional jewelry and other items from the theft at local pawn shops, and he has been charged with burglary, grand theft and six counts of dealing in stolen property.

These recent cases should serve as a reminder to Florida community associations of the level of safeguards and vigilance that must be put in place in order to help to prevent theft, fraud and abuse by association and management employees. In addition to the implementation of security and administrative protocols that help associations to avoid becoming a victim, the criminal penalties prescribed by the state’s new condo fraud law have now made associations better equipped to engage law enforcement than ever before.

 

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(10-25-17)

Rules Enforcement by Associations Requires Consistency, Persistence

By Laura M. Manning

All too often, our firm’s community association attorneys are asked by boards of directors and property managers about the steps that they can take to prevent troublesome residents from breaking the rules. In truth, we have found that associations which are active and persistent in disciplining their rule breakers are few and far between.

Typically, violations by unit owners and residents range from disobeying noise and nuisance provisions to more problematic issues such as ignoring an association’s prohibition of short-term rentals. Regardless of how big or small – or even how chronic – an infraction may be, it is important that boards do their part to enforce their association’s rules and regulations, which only work if they are uniformly administered. Choosing to look the other way when residents attempt to skirt or bend the rules can lead to chaos in a community, and ultimately an inability to enforce those rules even if the violations become egregious.

Upon the occurrence of any violation, the board of directors should contact their association’s legal counsel for a review of the governing documents to determine the specific provisions that have been violated based upon all of the pertinent evidence in the association’s possession. If it is determined that a violation has occurred, a notice of violation letter should then be sent to the resident. The violation letter should cite the provisions of the governing documents that were violated and provide the violator with either an opportunity to cure the violation or a demand that the violation cease and desist.

Association counsel should assist in the preparation of any demand letter, given that the enforceability of any restrictions or fine(s) imposed upon the resident will depend, in part, upon the use of a notice that is compliant with Florida Law and arbitration decisions rendered by the state’s Division of Condominiums. The notice is the first step required prior to taking further enforcement action, including filing a petition for arbitration against a resident for a violation of an association’s governing documents.

By following these relatively simple initial protocols, boards of directors can proactively minimize the amount of violations occurring in their communities.

 

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(10-11-17)

New Board Member Term Limits Law has Significant Impact for Florida Condo Associations

By Michael E. Chapnick

Among the major changes to Florida’s condominium laws in 2017 is a new provision mandating term lim- its for board members. The new legislation marks a significant departure from the past policies for most associations pertaining to the tenures of their board members, and it only applies to condo associations and not HOAs.

The newly codified law allows for board members to serve two-year terms, if that is what is called for in their association’s bylaws. However, a board member may not serve more than four consecutive two-year terms. The only exemptions to this cap would be granted to candidates who achieve a 2/3 super majority of the total voting interests and to associations that do not have enough eligible candidates to fill the board vacancies.

The Legislature does not appear to have intended this law to apply retroactively. Therefore, board members who have been serving consecutive two-year terms will not have to be immediately concerned that they will be unable to run for board seats going forward. Additionally, as the law only limits serving for more than four consecutive two-year terms, those associations whose directors only serve for one-year terms are unaffected by the limitation.

For those affected associations, this new law may cause some serious concerns. Some board members who have served for extended numbers of years play vital roles as experienced providers of steady leadership. They are uniquely aware of all of the administrative and operational details of a community, including its finances and long-term maintenance and construction issues.

However, the intentions behind the new law to generate new leadership for condominium associations are worthwhile, as newly minted board members often bring different perspectives and skills to bear for associations that have not updated their policies and practices for years. The term limits also help to curtail opportunities for unscrupulous board members to develop schemes over the course to years that put their own interests ahead of those of the community.

Undoubtedly, the board member term limits law for Florida condominium associations will have a significant impact for many condo communities throughout the state. Condominium associations would be well advised to consult with highly experienced legal counsel regarding the ramifications of the new law and how it will affect any term-limited candidates.

 

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(9-27-17)

Community Association Debit Card Provision

Uncertainties Answered

By Laura M. Manning

The outcome of this year’s legislative session evoked a lot of confusion from community association boards of directors and property managers. As a result, our firm’s other association attorneys and I have received many requests from our clients and the followers of our blog at www.FloridaHOALawyerBlog.com asking for clarification on some of the laws that were enacted, including the new debit card provision.

The debit card provision was added to block any community association, its officers, directors and employees from using a debit card issued in the name of the association to pay for association-related expenses. In the face of an increasingly cashless society, this new regulation poses a problem for many, considering that plastic is becoming the most common and preferred method of payment. So how are associations expected to pay for services such as Internet and communal utilities, or expenses such as new patio furniture?

Though this new provision prevents associations from using debit cards, it does not prohibit the use of credit cards for association-related expenses. By not allowing the use of a debit card, direct access to the association’s cash is restricted. While this measure was likely intended to provide a level of legislative protection from dishonest individuals having access to an ATM machine and a large bank account, use of credit cards for association purposes remains a permissible form of purchasing power, if not still a risky endeavor.

Associations that utilize credit cards are encouraged to restrict their use altogether, limiting the risk of becoming victims of fraud or theft. However, if an association is inclined to have a credit card, we recommend allowing only one card to be issued, keeping a low limit on the card, paying the card in full every month, and frequently checking charges made to the account.

While we realize that some may look at this new legislation as an inconvenience, ultimately the goal was to help protect condominium and homeowners associations and their owners from theft and fraud – and with the disturbing amount of cases of deceit in Florida community associations, we can use all of the protection we can get.

 

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(8-30-17)

Proactive Measures Help Community Associations

Diminish Exposure to

Negligent Security Lawsuits

By Roberto C. Blanch

Community associations, just as with all other property owners, can be held liable for crimes committed on their properties. In Florida, associations and other property owners owe a duty to their residents and guests to undergo reasonable steps to protect against foreseeable crimes.

There have been cases over the years of associations being sued by the victims of crimes that took place in their community for allegedly failing to implement adequate security measures. Some of these suits, especially those involving severe injuries, have been resolved in considerable rulings or settlements in favor of the victims. These awards, combined with the litigation costs and the possibility of increased insurance premiums, can be financially disastrous for many associations.

Exactly what is considered reasonable security is the key question before the courts in these negligence claims. Other considerations include whether the crime that took place was foreseeable. For instance, in a gated high-end community, residents and guests may expect a greater level of security, so some might argue that such community is to take measures at a higher standard.

In addition to implementing effective and reasonable measures with the help of licensed security services and professionals, associations should also consider protecting themselves against negligent security lawsuits by including certain disclaimers in their governing documents. If these disclaimers are to be added to the documents, they should be announced and discussed at a board meeting and other steps may need to be followed to ensure that the amendments to the governing documents are properly enacted.

Communications to the owners and residents about their responsibility to lock doors and windows or to install alarms or exterior lighting can also be helpful. Additionally, associations and their management should closely monitor and assess any known crimes that occur within or in close proximity to the community, and they should ensure that any security measures and systems put in place are functioning at full capacity.

By working closely with highly experienced legal counsel and security professionals, associations can help to diminish their exposure to potential liability stemming from negligent security claims.

 

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(8-16-17)

New Legislation Adds Teeth to Florida’s Condo Laws

By Michael F Chapnick

The new Florida law that establishes criminal penalties for association fraudsters should help many associations to contend with suspicious and irregular activities by unscrupulous board members.

Association boards of directors control the purse strings for their condo communities, and as such they have always made for extremely appealing targets for fraudsters who conspire to assume control via their annual elections. In a Las Vegas case, a U.S. Justice Department investigation revealed that 11 associations were defrauded of tens of millions of dollars in a board of directors takeover scheme from 2003 to 2009. Forty-one defendants were convicted of rigging board elections through such tactics as traveling to Mexico to print phony ballots, using the master key at a condominium complex in order to remove ballots from mailboxes, and retrieving discarded ballots from condo dumpsters.

The new legislation has ushered in significant changes to the state’s laws and the Department of Business and Professional Regulation’s blanket jurisdiction in upholding them. Some of the most important changes include criminal penalties for matters of willful and intentional acts such as fraud and self dealing.

Specifically, the penalties include:

• Forgery of a ballot envelope or voting certificate used in a condominium association election is punishable as a felony of the third degree in accordance with Section 831.01, Florida Statutes, which can carry a prison term of five years.

• Theft or embezzlement of funds of a condominium association is punishable based upon the amount of the theft or embezzlement in accordance with Section 812.014, Florida Statutes.

• Destruction of or refusal to allow inspection or copying of an official record of a condominium association that is accessible to unit owners within the time periods required by general law in furtherance of any crime is punishable as tampering with physical evidence in accordance with Section 918.13, Florida Statutes or as obstruction of justice as provided in Chapter 843, Florida Statutes.

• An officer or director charged by information or indictment with a crime referenced above must be removed from office and the vacancy shall be filled, unless the bylaws provide otherwise, by electing a new board member, and the election must be by secret ballot. The vacancy created by the removal of such officer or director shall be filled until the end of the officer’s or director’s period of suspension or the end of his or her term of office, whichever occurs first.

• If a criminal charge is pending against the officer or director, he or she may not be appointed or elected to a position as an officer or a director of any association and may not have access to the official records of any association, except pursuant to a court order.

• If the charges are resolved without a finding of guilt, the officer or director must be reinstated for the remainder of his or her term of office, if any.

By establishing clear criminal penalties, association fraudsters’ actions now fall under the jurisdiction of the economic crime divisions of state and local law enforcement rather than the DBPR, which is now focusing more on condominium administrative issues that do not require extensive investigations and prosecutions.

Association directors, members and managers who believe they may have evidence of criminal violations under this new law should consult closely with highly experienced association legal counsel in order to determine their next steps.

 

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(8-2-17)

Estoppel Bill Becomes Law, Brings Big Changes to Association Procedures

By Laura M. Manning

After several years of failed attempts, the estoppel bill has become law in Florida and mandates major changes to the way community associations in the state prepare estoppel letters (also called estoppel certificates), which are legal documents detailing the amounts owed by a unit owner prior to the sale of their residence.

Below are the changes required by the new law:

• Reduces the time associations have to respond to written or electronic requests for estoppel certificates from 15 days to 10 business days.

• Requires each association to provide on its website the identity of a person or entity (and their street or e-mail address) to which requests for estoppel certificates may be sent.

• Provides that estoppel certificates must be submitted by hand delivery, regular mail, or e-mail to the requestor on the date of issuance of the certificate.

• Changes authorized association signatories for estoppel certificates from officer or agent of association to any board member, authorized agent, or authorized representative of the association, including authorized employees of the association’s management company.

• Establishes the information to be contained in, and the substantial form of, an estoppel certificate. The following information must now be included in the estoppel certificate: the date of issuance, name of unit owner pursuant to association records, unit designation and address, parking space or garage number pursuant to association records, name and contact information for association counsel if the account is delinquent, fee for the preparation and delivery of the estoppel certificate, the name of the requestor, and assessment and other information, including whether any violations exist on the property or unit, whether approval is required for transfers of a unit, and whether the association has a right of first refusal.

• Establishes a 30-day effective period for estoppel certificates sent via e-mail or hand delivery, and a 35-day effective period if delivered by regular mail. Requires issuance of an amended certificate at no charge if the association learns of new information or a mistake made in the certificate prior to the sale or refinance of the unit.

• Caps the fees which may be charged for preparation of an estoppel certificate at $250, unless such certificate is requested on an expedited basis, in which case an additional $100 may be charged; if there are delinquent amounts due to the association from the applicable parcel, the association may charge an additional fee not to exceed $150.

• Provides that no fee may be charged if the estoppel isn’t provided within the 10 business-day deadline; and establishes an aggregate fee limit for requests for multiple units owned by the same owner if there are no past-due monetary obligations owed by such owner.

• Provides that the association waives the right to collect any amounts not included in the estoppel certificate from any person who relies on the information in good faith and his or her successors.

• Requires that the board of directors pass a resolution to establish the authority to charge a fee for the preparation and delivery of estoppel certificates.

• Provides that reimbursement for estoppel certificate fees for sales that do not occur may not be waived by agreement if the estoppel certificate fee was paid by someone other than the unit owner. Also provides for prevailing-party attorney fees related to actions for such reimbursements.

• Provides that the statutory fees authorized shall be adjusted every five years in keeping with the Consumer Price Index, and the adjusted amounts shall be published on the Department of Business and Professional Regulation website.

In light of all of the significant changes, Florida community associations and their property managers are advised to consult with highly experienced legal counsel in order to ensure compliance with the new law and new procedures to be followed when issuing estoppels.

 

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(7-19-17)

Use of Drones by

Homeowner Gets

Tempers Soaring at Florida HOA Community

By Roberto C. Blanch

The use of drones by owners and residents of units in HOA and condominium communities has created concerns across the country over potential privacy and safety issues for community association managers and their boards of directors. Sales of drones to consumers in the U.S. are expected to grow from 2.5 million in 2016 to 7 million in 2020, according to a report from the FAA. As the popularity of drones continues to soar, associations will need to come to terms with how they wish to address their use within their communities.

At the FishHawk Ranch community in the Tampa area, the use of drones by a homeowner has created such an uproar that it drew the attention of local TV news. The area’s CBS affiliate recently chronicled the battle that is brewing in the community over homeowner Frank Bragg and his collection of a half-dozen drones.

Bragg demonstrated his drones and the images that they capture to the station’s reporter, but the HOA president says those images are proof of the problem. He says that Bragg has been flying the drones over the community pool, and there have been Facebook posts raising privacy concerns and calling the homeowner out for "hovering over the kids’ area with half-naked children."

Bragg contends he was practicing flying the drone while his daughter played in the pool, and he notes that drones are not restricted by the current HOA rules.

Police were called once when Bragg was told to stop flying the drones and refused to comply, but they did not take any action because he had left before they arrived. The latest move from the HOA was to revoke Bragg’s privileges to use the community’s amenities.

When the news of the TV report went out, several neighbors contacted the station to indicate that the violations of their privacy with Bragg’s drones go well beyond the community pool. They claim that the drones also hover very low over their yards and that he uses them to look into their garages from their driveways.

The HOA will be addressing the drones at its next board meeting, with both Bragg and his critics planning to attend what will surely a contentious gathering.

Florida community associations should consider getting ahead of the issues created by drones by establishing clear parameters for their use within common elements and common areas. Last year, the Federal Aviation Administration enacted new regulations for the use of drones. Recreational users must register their drones and label them with the registration number, they must only be flown below 400 feet and always within sight of the operator, and they are banned from use near other aircraft and airports as well as over groups of people, stadiums, sporting events, or emergency response efforts.

Privacy concerns over the use of drones with cameras were addressed by a new Florida law stipulating that drones with cameras may not be used to record images of privately owned properties or of the owners, tenants or occupants of properties in violation of their reasonable expectations of privacy without their written consent. Reasonable expectations of privacy are presumed if individuals are not observable by others located at ground level in a place where they have a legal right to be, regardless of whether they are observable from the air with the use of a drone.

The implementation of new association rules governing drones should begin with a discussion that is open to all of the unit owners at a board meeting. If an association concludes that it wishes to permit the operation of drones in the community, it should consider rules to help ensure safety such as the establishment of designated take-off/landing sites, restricting their use to daylight hours, developing penalties for violations, and clarifying that the association is not liable for any property damage that they may cause.

With the continued growth in recreational drones, now is the time for associations to work together with their members to create rules that will address the related safety and privacy issues.

 

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(7-5-17)

Suspensions of Residents’ Use of Community Amenities Help Associations to Maintain Compliance

By Michael E. Chapnick

Florida community associations are always seeking to implement the most cost-effective options at their disposal to collect unpaid dues and compel unit owners/residents to comply with their rules and restrictions. Condominium associations used to have very few practical remedies at their disposal to address delinquencies and violations. They could file lawsuits or arbitration actions, but the costs of pursuing these cases can be a significant expense, and the imposition of fines requires the use of a fining committee and can be difficult to collect.

As a result of legislative changes to the state’s Condominium Act a number of years ago, associations are now able to suspend the rights of an owner, tenant or guest to use common elements and facilities if the owner of the unit is delinquent more than 90 days in paying a monetary obligation to the association. Condominium associations may also suspend, for a reasonable period of time, the right of an owner and/or resident to use common elements and amenities for the failure to comply with any provisions of the association’s declaration, bylaws or rules.

As with the imposition of fines, suspensions for rule and covenant violations may only be imposed if the association provides the owner/resident with at least 14 days advance written notice of the committee hearing. The committee must be composed of other unit owners who are neither board members nor persons residing in a board member’s household, and suspensions may not be imposed without the majority consent of the committee.

The effectiveness of these suspensions depends on whether communities have the types of amenities that would be sorely missed by residents, such as pools, tennis courts and fitness centers, and if they have the on-site personnel and monitoring capabilities that would be required to enforce the bans. Monitoring and enforcement of the bans against these residents will typically require concerted efforts by on-site staff as well as association directors and members.

The suspension of use rights against delinquent or unruly owners and residents can present its challenges, but it may also serve as one of the most effective collections and enforcement tools for associations. Board members and property managers should work closely with highly experienced legal counsel to discuss and develop their strategies regarding covenant and rule enforcement.

 

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(6-21-17)

Insurance Reminders for Condo Associations at Start of Hurricane Season

By Laura M. Manning-Hudson

With hurricane season now underway, Florida con-dominium associations should take the time to ensure that they and their owners are prepared for a storm. In addition to ensuring that hurricane shutters are operational and all of the necessary supplies are on hand, associations should communicate with owners about insurance and liability under state law.

Florida law requires associations to maintain insurance for all portions of the condominium property as originally installed in accordance with the original plans and specifications, as well as alterations or additions made to the condominium property. Personal property, including floor, wall and ceiling coverings (i.e., paint, wallpaper, wood flooring), electrical fixtures, appliances, water heaters, water filters, built-in cabinets and countertops, and window treatments including curtains, drapes, blinds, and similar window treatment components, located within a unit or that unit’s limited common elements, and which serve only that unit, are not covered by the association’s insurance policies. Unit owners are responsible for maintaining their own insurance coverage for these items.

At the start of every hurricane season, association board members or property management should photograph and/or video all of the main public areas of the condominium property. These images could become vitally important in the event that a storm strikes and claims are filed. Associations should also take the time to store copies of their wind, flood and property insurance policies in waterproof cases in a secure location. If possible, digital copies should also be stored in several computers and devices.

It is also good practice for associations to develop a hurricane policy and distribute it to residents each year reminding them of all the things they need to do to prepare for hurricane season, including ensuring that shutters are operational, moving all furniture inside before they leave for the summer, and taking pictures of their personal property to keep as record evidence in the case of a storm. Importantly, that hurricane policy should also include a reminder of the importance of maintaining their own homeowner’s insurance policies to cover their personal property within their units and their limited common elements. This communication may also be used to request updated owner and resident contact information, including cell phone numbers.

In the event of a loss, there could be a lot of work to be done, and it is advisable to consult with the association’s legal counsel and insurance consultants to assist in reporting and filing any necessary claims.

By taking all of these preparations, associations can ensure that all of their insurance matters are in order and they are ready for any storm-related claims that may arise.

 

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(6-7-17)

Unit Owners Beware:

The Developer May Have Stacked the Board Against You

Condo & HOA Board Members May be Neglecting the Duties You are Owed

By Roberto C Blanch

Are you concerned that the developer of your condominium did not deliver on the promises made to you when you purchased your condominium unit? Are you concerned with the construction of the condominium in which you live? For most individuals the purchase of a condominium unit can be their most important investment. However, many of the decisions impacting this investment are not up to the owner of the unit, but rather they are left up to a board of directors controlling the association.

At a specified time, the developer of a condominium is required to relinquish control of the association’s board of directors in favor of the unit owners. The turnover of an association from developer to the unit owners presents the first opportunity for the association’s board to hire a lawyer, an accountant and an engineer to perform important and time-sensitive inspections of the condominium. These inspections will identify construction defects and other concerns that may exist. As such, it should not be surprising that a developer would want a "friendly" association board of directors following turnover. But imagine the havoc an unscrupulous developer could inflict if the association’s newly elected board – or the attorney and engineer working for the unit owners – have financial ties to the developer.

A recent Miami-Dade grand jury report found that there was extensive fraud, mismanagement, stacking of boards and conflicts of interest among condominium association boards. Such misconduct is not limited to Miami-Dade, however. Perhaps surprisingly, one of the largest public corruption cases set in the fast-paced, scheming neon desert notoriously dubbed "Sin City" did not involve the usual Las Vegas suspects, but rather a contractor, a lawyer, and a stacked board of condominium directors. In 2015, Leon Benzer, a construction company boss, was sentenced to 15 and a half years in federal prison for orchestrating a scheme to take control of association boards for the purpose of channeling construction defect repairs to Benzer’s company. Benzer’s scheme involved a network of recruited purchasers and real estate agents who would get elected to association boards, hire Benzer’s attorney, and award lucrative contracts to Benzer’s construction company. Through these unethical practices, these individuals violated the duties owed to the association and its unit owners.

Condominium unit owners are considered shareholders of the association, and act in a fiduciary relationship to each owner. In such relationships, the law demands a higher than ordinary degree of care from each director and officer, with Florida law specifically demanding directors to discharge their duties in good faith. Simply put, directors should act to protect the best interests of the association and its unit owners, rather than their personal interests or those of affiliated third parties. The actions of the board members in Benzer’s scheme were in complete disregard of the unit owners’ rights, as they participated in rigging elections and seeking only personal gain.

In order to avoid a Benzer-type scheme, it is critical for unit owners to exercise due diligence in selecting truly independent individuals to become board members to represent the best interests of all the unit owners at the time control of the association is transferred from the developer. Since Florida law permits condominium association boards to settle claims concerning sums owed from the developer and matters of common interest to the owners, including construction defect claims, it is even more vital to ensure that an association’s board, attorney and engineer are not being led by ill-intended individuals to unscrupulously settle claims for pennies of their real worth, accept cosmetic repairs that do not fully address the underlying defective condition, and waive association claims for latent defects.

In order to ensure that meritorious claims of unit owners are adequately protected, unit owners must get involved and confirm that independent board candidates without financial ties to the developer or contractor are seeking election to the association’s board. Additionally, steps should be taken to confirm that the association’s officers and directors hire independent knowledgeable attorneys and engineering firms, not attorneys and engineers affiliated with the developer or contractor.

Unit owners should be cautious when dealing with an attorney that was selected, hired and paid by the developer-controlled board prior to the unit owners taking control of the association. Unit owners must ask critical questions of management, those seeking election to the board, and the attorneys and engineers being interviewed to represent the association as to their involvement or affiliation with the developer or contractor that built the condominium. Protect your investment, and avoid a Benzer "stacked board."

For further information regarding the turnover process, self-dealing, conflicts of interest, and the duties of your board of directors, please submit your questions on our website at www.srhl-law.com and get the information you need to make sure you are safeguarding your investment.

 

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(5-24-17)

Association Pool Tips for Safe, Fun Summer Season

By Michael E. Chapnick

At the start of summer, associations should evaluate their pool rules and procedures in addition to con-ducting all of the necessary inspections of their pools, spas and related equipment.

With the help of qualified professionals, the inspections should include all pools and pool equipment as well as the surrounding amenities, including gates, fences, signs, locker rooms, etc.

Association pool rules should focus on health and safety, and should avoid focusing on classes of protected persons, particularly families with children. Making the activities of children the focus of prohibitory rules can substantially increase the potential that an association will receive a complaint alleging discriminatory conduct under federal, state and local fair housing laws. Even prohibiting something as seemingly innocuous as "pool toys" could be deemed discriminatory, if directed specifically at children, rather than at all persons.

Likewise, unless your community avails itself of the Housing for Older Persons exemption to the anti-discrimination provisions of the Fair Housing Amendments Act of 1988, designating "adults only" pools or use times may give rise to FHA violations. Furthermore, some courts have found that not permitting children access to pools and other amenities unless accompanied by parents could also give rise to FHA violations.

Some of the most common safety-related rules include:

• No running.

• No glass containers.

• No diving in shallow areas.

• No pushing, horseplay, roughhousing, or dunking.

• No smoking and/or tobacco products in the pool area.

If on-site staff is charged with monitoring association pools, these employees should receive proper training addressing the pool rules and their enforcement, safety procedures, and calls for emergency assistance.

By conducting all of the necessary annual inspections and implementing appropriate rules to address safety, associations can help to ensure that they avoid wading into any rough waters during the summer pool season.

 

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(5-10-17)

Association Board

Meeting Do’s and Don’ts

By Laura M. Manning-Hudson

Often times we are called upon by our clients with questions regarding how to more efficiently run their board meetings and control the conduct of members during those meetings. Very often it seems that directors who are simply trying to be polite and respectful of owners by allowing them to express their opinions wind up losing control of the meeting and actually accomplish very little business. This trend of owners seemingly "hijacking" board meetings is not a new one, but it does seem to be fueled in recent months by the political climate we find ourselves living in now where all people want to be heard. Fortunately, the HOA and Condominium Acts provide board members with the tools they need to control their meetings while allowing all members to also have their "say."

Association board meetings are defined as any gathering for the purpose of conducting association business by the members of the board of directors at which a quorum is present. Unless the association’s by-laws or other governing documents provide for a longer period, notice of board meetings must generally be conspicuously posted within the community 48 hours in advance of the meeting. However, in certain circumstances (such as the adoption of assessments or some types of rules), written notice must be posted and provided to the members at least 14 days in advance of a board meeting.

In accordance with Florida law, an item of business that is not noticed may only be addressed on an emergency basis, such as situations involving sudden damage to the building, natural disasters and similar events. Emergency actions must be ratified or approved at the board’s next properly noticed board meeting at which a quorum of directors is attained.

The notice of the board meeting should list specific business items on the agenda. Boards and managers should make every effort to ensure that all reasonably anticipated topics of discussion are included. The more specific the agenda, the easier it will be for the board to control the pace and flow of the meeting. When agendas list broad topics without specific business items, boards leave themselves open to having to address issues brought up by members that would arguably "fit" under broad category headings. As such, the agenda should be comprised of specific open items from the previous meeting requiring action; specific owner items that may require board action; building maintenance items, as required; project information, updates, requests and actions; and seasonal information, such as annual and budget meeting information as well as hurricane preparation matters.

Some of the most common board meeting issues for associations include excessively long meetings that seemingly do not accomplish anything, disruptions by disgruntled owners, digressions from the agenda items, and the lack of clear direction and purpose for the meeting. Both the HOA and Condominium Acts allow associations to adopt rules regarding unit owner participation at board meetings. While both statutes provide that members are allowed to speak on all agenda items, adopting these types of rules regarding participation helps boards maintain control over the overall meeting.

Boards should consider adopting guidelines for owner participation at meetings, publishing these guidelines before the meeting, and reading them at the beginning of every meeting for those in attendance. Typical guidelines provide that an owner may speak for three minutes on any agenda item, no member may speak more than once until all owners wishing to speak for the first time have done so, and owners may speak only twice on a single agenda item, the second time for one and a half minutes. Once guidelines are established, enforcement of the rules is key even if it means using a stopwatch, timer or gavel (if necessary).

While neither statute addresses the specific time when owner discussion on agenda items should occur, allowing owners to comment before the board votes on the item allows the individual board members to take into account sometimes very meaningful opinions and comments when making their decision on how to vote. Limiting owner participation on agenda items until after the board action has been taken on the item defeats legislative intent and erodes meaningful opportunity for owners to address the board.

By closely adhering to the statutory requirements and following clear policies and procedures at board meetings, associations can help to ensure that all of their meetings are as effective as possible while disruptive elements are kept to a minimum.

 

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(4-26-17)

Community Association Boards Should Spread the Load by Relying on Committees

By Roberto C. Blanch

Association board members are asked to do a great deal for the communities they serve. They give up a great deal of their time and lend their varying expertise to help their communities run as smoothly and effectively as possible. Given that so much is asked of the directors, it is important that they take appropriate steps to delegate responsibilities to committees comprised of association members.

For most community associations, the benefits of involving committees are extremely worthwhile. Not only do they create a forum for the implementation and enforcement of vital policies and decisions, they also serve as ideal incubators for prospective future board members.

By their very nature, committees comprised of volunteer owners and residents should have a good understanding of the best policies and practices for their community. They may be ideally suited to oversee matters that involve the collection of information from the owners and the subsequent assessing of the data in order to make strong recommendations for suggested solutions.

Association boards should take the time to closely consider the use of different types of committees and their intended roles and responsibilities. Most association governing documents will include provisions governing the establishment of volunteer committees and how their decisions will be enacted.

Some of the most popular types of committees are:

• Architectural Control Committee (ACC) – Especially for single-family home communities, an effective ACC plays a critical role in maintaining property values by helping to ensure that all of the owners maintain their properties in accordance with the community’s covenants, conditions and restrictions.

• Communications Committee – Communicating association news via e-mail, text messages, websites, blogs, social media, newsletters, on-site notices, mailers, etc., requires a great deal of planning and execution, which may be ideally overseen by a committee.

• Financial Committee – This committee helps to oversee the association’s finances, budget, reserves and investments.

• Special Committee – This committee is charged with enforcement hearings, implementing fines, and the enforcement of the community’s covenants and restrictions.

• Landscape and Maintenance Committee – Primarily for sprawling HOA communities, its members oversee the aesthetics, maintenance and environmental sustainability of the property’s landscaping.

• Social Committee – Getting to know one’s neighbors is always a worthwhile endeavor, and this committee plans events for association members including seasonal festivals, movie nights, barbecues and fundraisers.

By utilizing committees and working to see that they are consistently staffed by dedicated association members who are eager to take part, associations are able to help ensure that they operate as efficiently and effectively as possible while also avoiding overburdening their board members with too many issues and responsibilities. When first establishing committees, associations would be well advised to consult with highly qualified legal counsel to help ensure their proper establishment and operation.

 

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(4-12-17)

Residents of Florida HOA Speak Out Against Association’s Use of Drones

By Michael Chapnick

The residents of the Concord Station community north of Tampa in Land O’Lakes, Fla. recently shared their complaints and confusion with a reporter from one of their local television stations over their HOA’s use of a drone equipped with a camera in their community.

The residents indicate in the station’s report that they received an online notice from their HOA alerting them that it would be flying the drone, which the association confirmed that it operated over the community in addition to a vehicle equipped with a mounted camera.

The residents who expressed their opposition to the HOA’s use of a drone were concerned about the invasion of their privacy, especially if the drone is recording video of their backyards. One of them indicates: "If the drone is flying above my property, I’m going to consider that a trespass to our property and we’re going to take appropriate measures to make sure that we protect our privacy rights."

The property management company for the association explains in the report that they are using the drone to chronicle all of the physical characteristics of the community in hopes of helping to avoid the possibility of homeowner hassles in the future. The video from the drone is being used for documentation of the state of the community, which is now transitioning from a developer-controlled association to one that is controlled by the unit owners. The company also noted that the aerial images and video could also be used for promotional and marketing purposes in the future.

While it is not uncommon for community associations and their property managers to contract for professional videotaping as part of the engineering and structural inspections that they undertake when the control of the association is turned over by the developer to the owners, the use of a drone appears to be a new wrinkle that some are now implementing. Depending on the costs, it could provide a cost-effective option for obtaining comprehensive and detailed images of the physical state of the property should any issues of latent defects ever arise.

However, due to the potential for concerns by the owners over the possibility of invasions of their privacy by the association’s use of a drone, boards of directors and property managers should use all of the means of communication that they would normally use in order to alert the owners and schedule the matter for discussion at a meeting that is open to all of the association’s members. They should be prepared to answer questions about the use of the drone and the benefits that would be achieved from having the images and video that it would capture, and they also must be prepared to address and respond to questions regarding the potential for invasions of privacy.

By being as open as possible about the use of a drone as part of an association’s property inspections during turnover, an HOA should be able to address any residents’ concerns that may arise and gain the understanding and approval of as many of the owners as possible.

 

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(3-29-17)

Why Stopping SB 398 Should Be a Bigger Priority for Community Associations

By Laura M. Manning

Each year, our elected state representatives and senators meet in Tallahassee for a legislative session where they review and debate an extensive amount of proposed bills, only to send a few of those bills to the governor to be signed into law. For the third year in a row, our elected lawmakers will be discussing a bill that has once again resurfaced, and if passed, may have a significant impact on community associations’ wallets.

House Bill 483 — also known as Senate Bill 398 or "the home tax" bill — proposes to place a considerable amount of requirements relating to the issuance of estoppel certificates on the condominium, cooperative or homeowners association responsible for preparing them. If signed into law, community associations will need to be both financially and operationally prepared to abide by the stringent changes set forth in the bill.

An estoppel is a legally binding document prepared by a community association or its agent that discloses any liens, overdue assessments or any other money owed to the association, such as late fees and attorney’s fees. Estoppels are required by title companies in standard real estate transactions in order to inform the seller and buyer of any outstanding financial obligation(s) on the unit or parcel. If prepared incorrectly, the community association could be liable for miscalculated or incomplete balances, resulting in a loss for the association.

Contrary to some people’s beliefs, estoppels aren’t generated by the push of a button. They take time and precision to prepare, which is why a bill that shifts even more of the burden on the association could be detrimental.

One of the main components of this proposed bill is to mandate more rigorous deadlines for the preparation of estoppels. Currently, associations have 15 days to prepare and deliver an estoppel once it is requested. The bill would shorten this period to 10 business-days, which could be difficult for associations of varying sizes and levels of sophistication, as some will be anchored by antiquated bookkeeping or a lack of resources.

The bill also provides a template for required information to be included in the estoppel, including any existing rule violations, approval requirements for sale or lease, and utilities included with assessments. Additionally, under the proposed law, estoppel preparation fees will be capped at a set amount, leaving the owners of an association to pay the bill for any differences in costs for the creation of an estoppel. Eventually, this could lead to higher assessments being placed on those residing in the community in an effort to offset the additional expenses incurred in the preparation of extensive estoppels.

Rushing the estoppel preparation process can also contribute to miscalculations of the total sums owed, adding to the association’s financial responsibilities because any discrepancies would have to be written off by the association.

The most notable and harmful requirement, however, involves imposing that associations pre-pay estoppel costs when services are rendered. This would mean that associations will have to advance money from their own account, regardless of whether or not the transaction goes forward, and wait to be paid from the proceeds of the closing. However, should the sale not close, the association may either seek reimbursement from the seller or be forced to lose the money it advanced. This will inevitably lead to higher assessments in order to make up for these losses.

Despite the significant push from the interest groups funding this bill, lawmakers still have a duty to listen to their constituents. We encourage community association members to reach out to their state representatives and senators to voice their concerns regarding how this bill will negatively impact their communities.

 

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(3-15-17)

Condominium Association Parking Restrictions and Enforcement

By Michael E. Chapnick

One of the most common problem areas for condominium associations and their property management is parking. Spaces are at a premium in most communities, and issues arise when unit owners and tenants fail to park in their designated spots. Associations and their property managers must be well prepared in order to effectively contend with parking violations.

Most condominium bylaws allow for the adoption of reasonable rules and regulations governing the use of the common elements, which typically include parking areas and spaces. Boards and management should determine whether the bylaws and/or rules are already adequately addressing parking in the community or if amendments to the governing documents and/or rules may be needed.

Some of the most typical issues addressed by parking rules are designated parking areas and spots for owners, guests and vendors, and spaces for commercial vehicles, boats on trailers, recreational vehicles, personal watercraft, campers, motorcycles and all-terrain vehicles. Some communities have restrictions on the number of vehicles that a unit owner is allowed to park onsite, and some have time limits for the parking of vehicles in certain areas.

Bear in mind that all parking rules and restrictions must comply with the Fair Housing Accessibility Guidelines developed by the Department of Housing and Urban Development (HUD) with respect to designating handicap parking.

Once clear rules and restrictions are in place, condominium boards should develop effective enforcement measures, which will typically include warnings, fines (typically using a graduated scale that increases commensurately with each violation, but consistent with statutory constraints), and towing. The bylaws or rules pertaining to towing should allow for the association to assess the costs to the corresponding unit owner, and towing notices and requirements must strictly comply with Florida law.

If parking violations persist with wanton disregard by an owner, associations may seek injunctive relief through mandatory non-binding arbitration conducted by the Florida Department of Business and Professional Regulation, and/or by going to court. Injunction actions to enforce an association’s governing documents allow the prevailing party to recover their attorney’s fees and costs. If a unit owner continues to violate the parking rules after an injunction has been granted by the court, it is possible that the owner can be found to be in contempt of court.

Keep in mind that disabled unit owners may be able to request a reasonable accommodation related to parking that would enable them to deviate from some of the related rules and restrictions. Also, when there are not enough designated handicap parking spaces to accommodate all of the disabled owners, an association could be required to designate additional spots. Given the wide range of claims related to parking accommodations under the Fair Housing Act, associations should always consult with highly experienced legal counsel regarding each specific request to assess whether the accommodation is reasonable and should be granted.

Parking is a limited and valuable commodity in all condominium communities, and as such there will always be issues that arise. By carefully reviewing their bylaws, rules and enforcement measures to help ensure that they adequately address parking restrictions and violations, associations can help to minimize the potential disruptions that may be caused by parking issues.

 

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(3-1-17)

Florida Medical Marijuana Amendment’s Impact on Community Associations

By Michael E. Chapnick

With the approval of Amendment 2 last November to legalize the use of medical marijuana in Florida, the state legislature and Department of Health are now developing the rules and regulations that will govern the use of cannabis by those who suffer from a number of ailments listed in the new constitutional amendment. Likewise, now is also the time for associations to begin discussing and considering the implementation of their own rules and restrictions regarding the use of the drug by unit owners in their communities.

For most communities, the question of whether the use of medical marijuana should be allowed in the common areas will likely cause the most unease. Other concerns include the use of cannabis inside of the residences, especially in condominiums where the odor could permeate into the common elements or other residences, and some properties may wish to ban the drug from the community in its entirety.

It remains unclear whether the state’s lawmakers will attempt to ban the smoking of medical marijuana. If smoking marijuana is allowed under the laws that will be adopted in order to comply with the amendment, community associations will need to address whether they must make exceptions to their rules in order to allow residents with a doctor’s prescription to smoke medical marijuana.

The exact wording of the amendment sheds some light into the question of whether associations can ban the use of the drug in their common areas. It states that "[n]othing in this section shall require any accommodation of any onsite medical use of marijuana in any correctional institution or detention facility or place of employment or of smoking medical marijuana in any public place." If the common areas of an association are deemed to be a "public place," associations will be able to prohibit the smoking of medical marijuana in their common areas.

Because marijuana is still regulated as a Schedule I drug under the Federal Controlled Substances Act, many questions remain to be answered as to whether the Fair Housing Act will require associations to grant reasonable accommodations to patients who are prescribed the drug. Will the U.S. Department of Housing and Urban Development consider it a reasonable accommodation, given that the possession and use of cannabis remains a federal crime? The agency’s general counsel has previously gone on the record stating that an accommodation request for the use medical marijuana is not reasonable and does not have to be granted. However, accommodations may also be requested pursuant to state and local fair housing laws, and if such a request is made, a different rule of law may apply.

Given all of the questions that remain unanswered, community associations should tread carefully in their responses to requests for reasonable accommodations under the FHA by patients with prescriptions for medical cannabis. They will need to keep a close eye on the new rules and restrictions governing medical marijuana that will be implemented by the state legislature and take effect later this year, and they should consult with highly qualified legal counsel to chart the best course on this issue for their particular community.

 

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(2-15-17)

Associations Need to Seek 

Ejectment Rather Than Eviction 

for Some "Tenants"

By Laura M. Manning

When the Condominium Act was amended several years ago to allow associations to demand and collect rent directly from the tenants of unit owners who were delinquent in the payment of their monthly fees, community associations thought it was an answer to their prayers. Associations were struggling to recover from the foreclosure crisis, and many homeowners made the decision to rent their units to make some money but, unfortunately, they also chose not to pay their associations.

However, utilization of this amendment has proven to be difficult and sometimes costly to enforce in cases in which de facto tenants and their landlords are able to demonstrate to the court that a tenancy under the letter of the law is not actually in place. How many times have we heard that the tenant is "family," that the tenant does not pay the landlord, and that there’s no lease in place?

A noteworthy example is found in a ruling last year by the Miami-Dade County Circuit Court Appellate Division in the case of Cecil Tavares v. Villa Doral Master Association. Tavares had conveyed his condominium unit via quit claim deed to a new owner, but he and his wife continued to live there. When the new owner went into arrears with the association, it attempted to collect the rent directly from Tavares and eventually filed for an eviction.

The county court granted default judgment in favor of the association and issued a writ of possession to enable it to move forward with the eviction, but Tavares appealed on the question of whether the court erred by defining him as a tenant based on the quit claim deed.

The appellate division court found no language in the quit claim deed indicating that the owner and the resident had created a legal tenancy (which requires either a written or oral agreement), and the association did not provide a copy of a residential lease agreement. It also found that there was no evidence that any kind of written or oral agreement existed, and ultimately concluded that it could not define the defendant as a tenant under the law.

As such, the court vacated the order of default judgment and remanded the case for further proceedings to determine if the defendant was a tenant under the law. If the county court finds that Tavares is not a defendant, the appellate court ruling directed it to transfer the case to the circuit court for ejectment proceedings, which are typically reserved for use against squatters and fall under the jurisdiction of circuit courts rather than county courts. The appellate division court also granted the defendant’s motion for attorney’s fees from the association because he was the prevailing party.

Ejectments are typically more complicated than evictions, especially if they are contested, and the process can often take quite a bit longer than an eviction to complete. It begins with the filing of a complaint for ejectment, which must provide 20 days for the defendant to file a response. A hearing will follow the defendant’s answer, and the plaintiff association will need to demonstrate to the court that it has a present right to possession of the unit under Florida law.

Other associations attempting to collect the rent directly from the tenants of delinquent owners have also encountered similar defenses in which the tenants and owners claim to be friends, relatives or coworkers, and indicate that no agreement is in place and no rent is being paid.

In cases such as these in which it becomes apparent that it will be difficult to establish that an actual tenancy is in place, the appropriate remedy may be an action for an ejectment in circuit court rather than pursuing an eviction in county court.

 

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(2-1-17)

Community Associations Responding to Soaring Popularity of Drones

By Roberto C. Blanch

The growing use of drones by consumers across the U.S. is leading to the adoption of new rules and restrictions by the federal government, state governments and community associations. Questions regarding safety, property damage and privacy abound with drones, and associations are responding by establishing clear parameters for their use by unit owners.

Last year, the Federal Aviation Administration enacted new regulations for the use of unmanned aircraft systems, which are more commonly referred to as drones. For recreational users, the FAA now requires that drones must be properly registered and labeled with the registration number. They must only be flown below 400 feet and always within sight of the operator, and they are banned from use near other aircraft and airports as well as over groups of people, stadiums, sporting events, or emergency response efforts.

Privacy concerns over the use of drones with cameras were addressed by a new Florida law that was enacted last year. The law stipulates that drones with cameras may not be used to record images of privately owned properties or of the owners, tenants or occupants of properties in violation of their reasonable expectations of privacy without their written consent. Reasonable expectations of privacy are presumed if individuals are not observable by others located at ground level in a place where they have a legal right to be, regardless of whether they are observable from the air with the use of a drone.

For associations, the implementation of new rules and restrictions concerning drones should begin with a discussion that is open to all of the unit owners at a board meeting. This enables all of the members of an association to share their thoughts and concerns, which are then taken into account by the board in the development of new rules.

If an association concludes that it wishes to permit the operation of drones in the community, it should consider the adoption of rules and restrictions to help ensure safety. These include the establishment of designated take-off/landing sites, restricting their use to daylight hours, developing penalties for violations, and clarifying that the association is not liable for any property damage caused by these aircraft. Additionally, the association board or management should consult with its insurance agent or consultant to confirm that it is adequately insured with regard to the risks that may be presented as a result of the use of drones at the property governed by the association.

Once the rules are established and enacted, associations should communicate them to the membership via email, mail, posted notices, newsletters, and any other means that they typically use.

Sales of drones to consumers in the U.S. are expected to grow from 2.5 million drones in 2016 to 7 million in 2020, according to a report from the FAA. With the continued growth in their popularity and usage, now is the time for associations to work together with their members in order to develop and implement the rules and restrictions that make the most sense for their specific community.

 

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(1-18-17)

HOA Bookkeeper Gets Booked for Embezzling $95K

By Laura M. Manning

For community association practitioners, it often seems that no matter how much we caution homeowners and condominium associations to take all of the necessary safeguards in order to prevent theft and embezzlement, new cases of blatant fraud always seem to crop up.

The latest example was chronicled in a recent article by the Palm Beach Post. The article focuses on the arrest of the bookkeeper for the master homeowners association of Cypress Lakes, a 1,000-home, 55-plus community off Haverhill Road in West Palm Beach. Kristine K. Moore, the bookkeeper, was charged with embezzling nearly $95,000 over the course of years from the association. Moore was paid $44,000 per year and had been employed by the association for more than six years.

According to a police affidavit, management reviewed the association’s credit card bills and called police in April 2014 after discovering about $10,700 in charges for personal purchases during the preceding several months. Additional review then uncovered much larger losses, including missing cash deposits that had been paid by homeowners.

The purchases included nearly $3,000 at Best Buy, $8,000 at Wal-Mart and Walmart.com, and thousands more from such places as Springhill Suites, Supercuts, Sprint Wireless, Publix, K Star Diamond & Jewelry, and Victoria’s Secret. They included hotel bills, perfume, 46 cell phone cases, a Louis Vuitton purse, and even an engagement ring.

The preliminary accounting review revealed that Moore had been using the association’s funds for personal expenditures since 2011. On March 26, 2014, she overheard the property manager in the office discussing the discovery of serious discrepancies in the association’s financial records. She then promptly picked up her belongings, left the property and never returned to work.

Cases such as this illustrate the importance for associations to put in place the most effective precautions and safeguards in order to help ensure that they do not become a victim. These include monthly reviews of all of its bank and credit card statements by at least two people, ideally including both a board member and management staff. There should also be annual audits by experienced and reputable independent accountants to carefully review and certify the validity of the financial records for all association accounts and payments.

By using these and other best practices for avoiding fraud and theft of association funds, HOAs and condo associations are able to greatly diminish the possibilities for larceny and uncover it as quickly as possible if it does occur. Visit https://goo.gl/qW1cp3 to read the complete article in the newspaper’s website.

 

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(1-4-17)

Bank Loans Offer Worthwhile Financing Option for Many Associations

By Michael E. Chapnick

While maintaining an adequate level of reserve funds for deferred maintenance, capital improvements and other major expenses is always recommended, community associations that find their reserves do not cover all of their needs have a worthwhile option other than special assessments that they should explore and consider.

Bank loans and lines of credit for associations were very difficult to obtain during the height of the foreclosure crisis, but happily for many Florida communities those days are long gone. Now, there are a number of lenders that focus on loans for associations and offer highly competitive rates and terms.

Special assessments are typically the first option that associations consider to cover shortfalls in their reserves and take on important renovations or other unforeseen expenses. However, it may not be the preferred choice for many communities. Millions of U.S. homeowners are still recovering from the crash of the housing market and do not have the ability to secure a home equity line of credit in order to pay a special assessment. In addition, the implementation of a special assessment is viewed as a sign of financial distress in an association by lenders considering FHA-backed home loans for buyers in a community, and this can ultimately take a significant toll on sales and property values.

Most associations will begin their research into their financing options by first turning to the bank that maintains their operating and/or reserve accounts. While this is the obvious place to start, in the majority of cases they are also going to need to shop around.

Community association loans are significantly different than standard commercial loans because the collateral used to secure the loan is intangible. Lenders in the association context collateralize the debt by accepting an assignment of the association’s collection and lien rights for the current and future assessments paid by its members. Typically, the lenders that have a particular focus on association loans are best equipped to correctly ascertain their level of risk and exposure, and provide the best possible rates, terms and conditions.

Many lenders will require associations to move their operating and/or reserve accounts to the bank in order for it to grant the loan, and these deposits provide a commensurate level of leverage to help the association to secure a low interest rate.

In addition to a careful review of the association’s financial records, lenders considering these loans will also typically require an opinion letter issued by the association’s legal counsel confirming that they have reviewed the association’s governing documents and determined that it has the right to enter into a loan agreement and that, among other things, all conditions required to do so have been met. Experienced association counsel can also assist in reviewing and negotiating all of the terms and conditions of the loan to help ensure that the association’s interests are well protected.

When it comes to funding a major project, handling unforeseen expenses or even paying for annual insurance premiums, associations that do not have sufficient reserves or wish to adopt special assessments should consider their bank financing options. By shopping around and relying on highly experienced legal counsel to help negotiate favorable terms, associations may find that a commercial loan presents the best choice for their specific needs and circumstances.

 

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Partner Laura M. Manning-Hudson with the South Florida law firm Siegfried Rivera has focused on representing condominium and homeowners associations in matters involving all aspects of community association law since 1998.  She is based at the firm’s office in West Palm Beach and is a regular contributor to its community association law blog, www.FloridaHOALawyerBlog.com.  The firm represents more than 800 community associations, and it also maintains offices in Miami-Dade and Broward counties.  www.siegfriedrivera.com, 561-296-5444. 

Roberto C. Blanch is a partner with the law firm Siegfried Rivera and a regular contributor to the firm’s community association blog, www.FloridaHOALawyerBlog.com. He focuses on community association law and represents associations throughout South Florida and the Treasure Coast. He earned his law degree from Saint Thomas University and received his bachelor’s degree from the University of Florida. He can be reached at 1-800-737-1390 or via e-mail at rblanch@siegfriedrivera.com. www.siegfriedrivera.com