Managers Report newsletter

Should Your Association Eliminate Some of Your Outdated Rules?

Many of my conversations with my association clients involve an evaluation of their rules and regulations and their available enforcement tools.  We regularly discuss how previously overlooked rules can be revived through a process known as republication so the Board can once again enforce them prospectively.  We also discuss how rules must complement rather than contradict the provisions in the recorded Declaration or Bylaws.  There are times, however, when I raise a question that some of my clients have never considered:  are there current rules that need to be updated or eliminated altogether?

Some of the following restrictions may need to be updated to be more relevant to your residents’ lifestyles these days and, an added bonus to doings so, is that it is much easier to secure voluntary membership compliance with relevant, reasonable rules.

  • Almost every set of governing documents I’ve read over the least two decades restricts the use of the unit or the home to “single family use”.  Many of these restrictions were drafted decades ago when a single family resembled the family in “Leave it to Beaver”. These days a single family unit can be comprised quite differently and your documents should be revised to reflect that reality by defining a family in more contemporary terms.  Since federal and state law is subject to further change in this area, I prefer to amend this section to ensure that the unit or home is used for residential purposes. Defining the term family is also important if you wish to impose and enforce meaningful restrictions on guest occupancy.
  • The opposite of a residential purpose is a commercial purpose which most association documents seek to prohibit. However, in the strictest sense of the words, many of your owners are already violating this provision if your documents have a broad prohibition against “commercial use”.  Many people these days telecommute which means they are earning a paycheck out of their unit by conducting their company’s business from home; this would constitute a commercial use of the property.  Others may be tutoring, counseling or advising paying customers online which would also fall within a commercial use description. The restriction against commercial usage was drafted, in many cases, by developers’ counsel many years or decades ago before the advent of the personal computer, tablet or the ubiquitous cell phone, all of which are frequently used for business purposes.  The typical prohibition on commercial use was designed to prohibit business activities which would detract from the residential character of the community or create a nuisance for neighboring owners; a typical example would be an owners operating a hair salon out of his or her unit or home which would bring both customer traffic as well as noxious odors and noise to the property.  Clearly, the use of typical digital devices rarely impacts the residential character of the community nor does it create  an actionable nuisance; attempting to enforce an archaic commercial use prohibition under those circumstances is likely impossible. Associations should revise older commercial use restrictions to define the types of commercial activity which are prohibited and which are not.
  • Once upon a time, trucks were a bugaboo in community associations; seen as something that vendors and contractors drove but certainly not residents. These vehicles were seen as eyesores which detracted from the overall aesthetic of the community. These days, many trucks are coveted, expensive vehicles which are driven by a wide cross section of the population. If your community’s documents have a blanket restriction against “trucks” or “commercial vehicles” without proper specificity, it may be time to rethink why these vehicles are being prohibited. If your parking spaces cannot accommodate these larger vehicles that is a legitimate reason for the restriction to remain in place or to impose size limitations or designate appropriate parking areas for larger vehicles but if the restriction is borne out of aesthetic concerns alone this may be a restriction that is unnecessarily narrowing your pool of eligible purchasers as well as creating dissension in your community.
  • Nothing stirs the blood as much these days in community associations as the topic of pets.  Some communities believe that they are “no pet” communities. They rely on older restrictions which impose a blanket prohibition on any and all pets but, when asked, many of these boards cannot confirm with any degree of confidence that there is not a goldfish in a bowl or a hamster running on a wheel inside one of their units.  Overly broad pet restrictions may be one of the factors fueling the proliferation of fraudulent assistance animal requests in community associations. Revising those blanket restrictions to impose moderate, reasonable boundaries, prohibiting only those pets or animals your board would be prepared to pursue legal action to remove might stave off certain unintended consequences, particularly assertions of selective enforcement without negatively impacting the quality of lifestyle in the community.
  • Rules that pertain strictly to children expose an association to potential liability. Families with children are a protected class under both Federal and Florida law and rules which single out families with children by making their experience in the community more restrictive than families without children are often seen by the courts as driving a discriminatory agenda.  Your board has to strike the right balance between protecting your residents and your common areas and not creating and enforcing rules which have a disproportionately negative impact on one set of residents. For example, rules which permit the pool to be used only during the typical hours when children are in school might be viewed by a trier of fact to be a transparent attempt to keep children out of the pool altogether. Rules which use words like “toys”, “running” and “playing” similarly expose a preconceived notion of which segment of the association’s population engages in those activities.  It is important to remember that some adults cannot accurately assess the risks associated with the use of the pool or weight equipment, are incontinent, and like to engage in horseplay in the pool so age alone is not the best barometer for drafting rules related to conduct.

The foregoing list is by no means all-inclusive.  Your community might have old rules which are no longer legally enforceable regarding satellite dishes and religious objects affixed to the door frames of condominium units or rules which impose fees triggered by the transfer of a unit which are not permitted by the applicable statute or your governing documents.

I recommend to my clients that they engage in a regular rules audit with me to confirm which rules are effective, which can be improved or updated and which are well past their expiration date.

 

Donna DiMaggio Berger

Board Certified Condominium and Planned Development Law Attorney and Shareholder, Becker
Ft. Lauderdale
 | bio

 

Why is a Plat so Important?

As an owner of residential property in Florida, you are aware that your community is probably subject to a unique set of “governing documents.” Typically these will include a Declaration of Covenants and Restrictions, Association Articles of Incorporation and Bylaws, and various Rules and Regulations.

Less well known is the statutory process of “platting,” which is required whenever a developer wishes to subdivide a large piece of property into smaller parcels and tracts. These smaller areas become the residential lots, streets and parks of a new residential sub-division.

Creation of statutory subdivision plats is governing by Florida Statute 177 Part 1. The statute contains specific requirements for both drafting and filing a plat. Basically a plat is a map of the subdivision of lands, which is supposed to be an exact representation of both the subdivision and other information required by the statute and any local ordinances. The next time you have an issue with boundaries in your community, the extent or purpose of an easement, or whether a portion of property is within your property, check your plat in addition to other governing documents, it has a wealth of information.

Every plat of a subdivision must be accompanied by a survey of all the boundaries of the platted lands. The survey must be performed under the supervision of a professional surveyor. Each plat must be accompanied by a title opinion of a Florida attorney, abstractor or title company which shows that all the owners of the property are executing the plat, and that all mortgages on the property have been satisfied.

The statute lists 29 specific requirements for each plat, including the size of the plat and the color ink that must be used. In working with your community plat (which is recorded in the Public Records of the County in which your community is located) the following requirements can be particularly useful:

  • A prominent “north arrow” must be drawn on every page to allow you to orient the map.
  • Sufficient data must be shown on the plat to describe the boundaries of every residential lot, block, street, easement, park and all other areas shown on the subdivision plat.
  • Properties which adjoin the subdivision must be identified by subdivision title, plat book and page. If adjoining land is unplatted, that must also be designated.
  • Both the location and width of all easements must be shown either on the plat or in the notes or legend on the plat. The specific intended use of each easement must also be clearly stated.
  • If there is an interior parcel within the community that is not part of the plat, it must be clearly labeled; “Not A Part Of This Plat”. Without such a label, all property within the boundaries of the platted subdivision are included.
  • If your community decides to have another survey of any portion of the property, it is important to remember that the original surveyor who prepares a subdivision plat is presumed to have been correct. For this reason, the new survey will only locate the original monuments, points and lines of the original survey. If for any reason there is a discrepancy between what the subdivision plat shows and what the original survey indicates, the monuments placed on the ground as part of the original survey have precedence.

 

Harry W. Carls, Esq.

Office Co-Managing Shareholder, Becker
Orlando | bio

 

Attorney-Client Privilege When Board Members Sue the Association

Attorney-Client Privilege When Board Members Sue the Association

Many Associations have just completed their election season and find that a person or persons newly elected to the Board are involved in a case being defended or prosecuted by the Association. Now what? Clearly, a conflict of interest exists but participation in a lawsuit against the Association is not one of the factors that makes you ineligible to sit on the Board. Therefore, the person(s) can take their seat on the Board so long as every other aspect of the election process was valid. The Board however still needs to take measures to ensure that the strategy and legal opinions obtained from counsel on behalf of the Association continue to be privileged. This can be accomplished in a few ways. One option is for the person(s) with the conflict to recuse themselves from participating in any meeting/vote regarding the lawsuit. Their fiduciary duty to the Association would be fulfilled but what if that means there is no quorum of the Board to make a decision? Also, they would have to know of the meeting in order to recuse themselves and this would tip them off that something was up? The better alternative is to have an open Board meeting for the sole purpose of creating a committee of members of the Board who do not have the conflict of interest. This meeting would be open to all members of the Board and the Association. The persons with the conflict should be allowed to vote on the issue and their fiduciary duty should dictate that they vote in favor of such a committee. During this meeting the Board should also vest all powers necessary to allow settlement or resolution through appeal in the committee. Otherwise, if the committee continually had to return to the Board for more authority, the person(s) with the conflict would be able to deduce what was going on and the creation of the committee would be for naught.

If the Association is one in which the majority of the Board makes up the person(s) with the conflict, there will not be enough disinterested Board members to create a committee which could handle the litigation. The option then is to have non-board members partake in the committee. In this instance, the Board should decide how many additional persons are needed. My recommendation would be if you have a 5 person Board with 3 persons having a conflict, that you add 3 additional non-board members to the committee. The most diplomatic way to do this would be to have an open Board meeting for the purpose of the creating the committee but advising on the notice that the Board will seek 3 volunteers to sit on the committee from the non-Board members. During the meeting, the Board would explain the purpose of the committee, the fiduciary duty to the Association and the requirement that the privileges afforded a litigation be preserved despite any friendship with the person(s) having the conflict. For obvious reasons, relatives of the persons with the conflict should not be allowed to sit on the committee. Should only 3 volunteers seek to be part of the committee, nothing else is necessary. Should however more than 3 volunteers seek to be part of the committee, the Board should vote on each one until the 3 spots have been filled. Another option would be to have the members vote on the volunteers.

Please note, if your governing documents provide another procedure for setting up a committee (such as landscaping, architectural, etc.) you may want to follow that procedure all together. Similarly, if the governing documents require that you have a litigation committee, then you need follow that procedure, always ensuring that the person(s) with the conflict do not sit on the committee. Regardless of how this committee is seated, the first thing to do is set a closed meeting with counsel. This will permit the attorney to meet the persons she will be dealing with during the litigation. Additionally, the attorney will be able to explain the duties of the committee as they pertain to the Association in terms of the suit and bring the committee up to speed on what is going on in the case. The attorney will also be able to get an understanding of what the committee wants in terms of resolution (i.e., settlement or trial). One last thing, when creating the committee, it should be clear that the committee is created solely for the purpose of the case at hand and all that goes with it (counterclaims, third party claims, etc.) and that it dissolves immediately once the case is resolved. Again, if your governing documents create a method for dissolving a committee, the Association should follow those procedures.

 

Marilyn Perez-Martinez

Attorney at Law, Becker
Miami | bio

 

nuisance

Defining a Nuisance in your Community

If you live in a shared ownership community, you have likely heard the term “nuisance” bandied about now and then. It is an unfortunate byproduct of living in close quarters with others that at some point, another person’s conduct may impact your enjoyment of your home.

A nuisance can be summed up as a condition, activity or situation (such as loud noises or foul odors) which interfere with another person’s use or enjoyment of property. Every set of association documents I have reviewed over the last two decades contains at least a bare bones nuisance provision.

Legally speaking there are many different types of nuisances which include:

  1. Abatable nuisance-easily removable by reasonable means.
  2. Nuisance per se (aka absolute nuisance)-an interference so severe that it would create a nuisance under any circumstances.
  3. Anticipatory nuisance-a condition which has not yet risen to the level of a nuisance but is very likely to become one.
  4. Attractive nuisance-a dangerous condition that could attract children-a typical example is an unsafe lake or other body of water.
  5. Permanent nuisance-cannot be readily abated at reasonable expense.
  6. Private nuisance-this one is the most applicable in the community association setting as it impacts a person’s enjoyment of his or her property.
  7. Public nuisance (aka common nuisance)-is an unreasonable interference with a right common to the general public.

Practically speaking, the following conditions can be considered nuisances depending on how often they occur and the level to which they rise:

  • Loud noises-radio, pets barking, screaming, etc.
  • Odors
  • Parking-blocking in neighbors’ cars, parking on others’ property, etc.
  • Failing to clean up after dogs and/or allowing dogs to run around off leash
  • Domestic violence
  • Smoking
  • Overflowing waste receptacles used by owners undertaking home renovation projects
  • Leaving holiday decorations up year-round

The foregoing list is certainly not all-inclusive. Nuisances in communities often result in long-ranging consequences which can include board members being recalled for failing to act, people moving out of the community and, in the most dire circumstances, violence erupting between neighbors.

Which activities have you seen in your community or a neighboring community which could constitute a nuisance? What has your board done to correct the problem?

If you have not looked at, let alone amended, the nuisance provision found in your original developer-written documents, it is time to do so. Why leave it up to a trier of fact to determine what is considered a nuisance in your community? Spell it out for swifter and easier enforcement.

 

Donna DiMaggio Berger

Board Certified Condominium and Planned Development Law Attorney and Shareholder, Becker
Ft. Lauderdale
 | bio

 

difficult people

The Dynamics of Difficult People

We all encounter difficult people in our lives. This is particularly true for property managers. In dealing with difficult people, and in order to maintain your sanity, finding an effective way of dealing with difficult people is critical.

Effectiveness in dealing with difficult people begins with understanding the dynamics of the person and situation. It is helpful to understand the difficult person by examining what type of difficult behavior are they exhibiting and what are their motives. In understanding the dynamics of the situation, you are deciding what tools and techniques you can use to assist in resolving the situation.

The first consideration is identifying the type of behavior being exhibited. This consideration focuses on two aspects of behavior: whether the person is at their core a difficult person or is being difficult due to the situation itself and how they are exhibiting their difficult behavior.  The next step that is important is to identify as best you can, the person’s motives which can be trickier than it seems.

Once you have an understanding of the dynamics of the person, you then turn to the dynamics of the situation. This is where you employ your tools and techniques that can help resolve the issue you are experiencing with the difficult person. 

The typical behaviors of difficult people generally fall into one of several categories based on common characteristics. Some of the more common categories are:

  • Bullies – people that tend toward angry outbursts, that must be right at all time, that backstab and spread rumors.
  • Malcontents – people who complain about everything, are never satisfied and are negative about everything.
  • Know it Alls – people who are pompous, condescending and generally believe (whether true or not) that they know more than you.

After identifying the behaviors associated with certain categories of difficult behavior, it is important to try and understand the motive of the person which involves asking the person questions and communicating with them. It is important for you to control the communication by making sure the communication is on your terms. Setting an appointment with the person is one of the best ways to make sure you are fully prepared to address the issue.

Motives can be obvious and easy to understand but they can also be complex. The key is to identify, through discussion, the motive of the person. Asking the following questions can help expose motive and help unpeel any complex motivational issues:

  • What is going on that led to X?
  • What would getting X do for you and why is that important?
  • If you are not able to get X, what else might satisfy you?

Identifying behavior categories and motives allows you to more effectively disarm the difficult person and to negotiate with them.  The following are a few strategies that can be helpful in disarming a difficult person based on the type of behavior the person is exhibiting:

  • Bullies – stand up to the bully and confront the person on your terms in a professional but direct manner.
  • Malcontents – refuse to feed into their complaints or allow yourself to be a sounding board. Instead, steer the conversation toward the person’s desired outcome and encourage the person to find solutions.
  • Know it Alls – counter the person’s understanding with information but try to present the information in a way that allows the person to save face.

Once you have a plan for disarming the difficult person, the task becomes resolving the issue. Active listening is essential to understanding the issues, identifying areas of agreement and disagreement and preparing yourself for your response. Asking questions and making statements that make the person defensive should be avoided as should statements that minimize the person’s feelings.

After allowing the difficult person an opportunity to express themselves and their objective, you can begin the process of negotiating with the person in order to resolve the conflict.   The following techniques can help in the negotiation process:

  • Focus on the future. Remind the difficult person that the past cannot be changed but they can be part of coming up with a solution for how things should be in the future
  • Use silence. Use silence during points of unreasonableness and after making offers in order to encourage the other person to reflect on what was said.
  • Use doubt. Use a question like “is it possible?”
  • Use the facts if the difficult person was not aware of all relevant facts.
  • Role reversal. Help the difficult person see the situation from your point of view.
  • Point out possible inconsistencies by gentling saying something like “I am confused, I thought I understood you to say X.”
  • Point out constraints.

Once you feel that a resolution has been reached, it is important to make sure that you restate the resolution so that you both are clear on what will happen next.

 

Marielle E. Westerman

Marielle E. Westerman

Construction Law Attorney, Becker
Tampa | bio

 

Are E-Mails Official Records?

Whether you live in a condominium, cooperative or homeowner association, the Statue governing your community defines the term “official records”. In defining official records, each Statue has a catch-all provision.

All other written records of the association not specifically included in the foregoing which are related to the operation of the Association.

Sections 718.111(12), 719.104(2), and 720.303(4), Florida Statues.

Questions abound as to whether e-mails are official records. The Department of Business and Professional Regulation (“Division”) has ruled that e-mails to an association can be considered official records and are therefore subject to inspection and copying by owners or their representatives. The question is, what are e-mails “to an association?” Are personal e-mails between board members official records? What about an owner’s e-mail to a board member’s email address and the board member’s response to that owner – is that considered an official record subject to another owner’s inspection and copying?

Division rulings have held that e-mails to an individual director or to all directors as a group, addressed only to their personal computers are not written communication to the association and therefore not considered an official record. This is because there is no obligation for a director to turn a personal computer with any regularity, or to open and read e-mails before deleted them. Irzarry v. Laguna Point Condominium Association, Inc., Arbitration case No. 08-05-2791 (April 10, 2009/Final Order). This point was further clarified in the arbitration case of Humphrey v. Carriage Park Condominium Association, Inc., Case NO. 08-04-0230 (March 30, 2009/Final Order/Campbell), where the arbitrator stated that “any e-mails received by, stored upon, or otherwise contained upon or within the personal computer devises (e.g., computers, laptops, cell phones, tablets, etc.) of Directors shall be considered the personal property of the Director upon whose devise said e-mail exists.” I other words, the e-mail does not belong to the association.

However, arbitrator in Humphrey went on to state “[t]he conclusion may be different if the association owns a computer on which management conducts business including e-mails (analogous to government public records); or if e-mails are printed up and passed around for discussion at a board meeting.” In other words, e-mails to an association’s e-mail address, the (“@codename.com”) are considered official records.

It is important to have a clear understanding of and a policy in place related to e-mail to assure that those e-mails that are official records are properly kept and those e-mails that are not official records are properly deleted. There are also exceptions for things such as communications that relate to litigation, which must be considered when creating and implementing an e-mail policy. It is therefore strongly recommended that all associations involve their attorney when formulating their e-mail retention policy.

 

Marilyn Perez-Martinez

Attorney at Law, Becker
Miami | bio

 

Estoppel Certificates

A Requirement of Condominiums, Cooperatives, and Homeowner Associations

Some associations are not complying with the new laws on Estoppel Certificates which is required of condominiums, cooperatives, and homeowners associations. Prior to July 1, 2017, the association only had to provide the prospective purchaser with information about the monies owed to the association attributable to the unit being purchased. Now, the association must provide a certificate with a considerable amount of additional information as described below. If the information is prepared incorrectly the association may be estopped (barred or precluded) from alter going back to that individual for the funds or violations that were omitted from the certificate. My recommendation is that the association have their attorney prepare the initial certificate and provide that certificate to their manager or management company as some of the information requires a review and analysis of the association’s governing documents.

There is a long list of information which is required to be in the estoppel certificate found in Sections 718.116 (Condo), 719.108 (coop), 720.30851 (HOA), Florida Statues which includes (by way of example only and not as a complete list):

  • parking or space number, as reflected in the books and records of the association;
  • attorney’s name and contact information if the account is delinquent and has been turned over to an attorney for collection;
  • an itemized list of all assessments, special assessments, and other monies owed;
  • an itemized list of any additional assessments, special assessments, and other monies that are scheduled to become due for each day after the date of issuance for the effective period of the estoppel certificate is provided.

The statue then requires you to provide:

  • whether there are any open violations of rules or regulations noticed to the unit owner in the association official records;
  • whether the rules and regulations of the association applicable to the unit require approval by the board of directors of the association for the transfer of the unit and if so, whether the board has approved the transfer of the unit;
  • whether there is a right of first refusal provided to the members or the association, and if there is if the members of the association have exercised that right of first refusal; In addition, the association is also required to provide a list of, and contact information for, all other associations of which the unit is a member, provide contact information for all insurance policies maintained by the association, and provide the signature of an officer or authorized agent of the association.

For some associations, your manager has handled this certificate when it was just a matter of filling in the amounts owed, because they took care of the accounting for the association. However, reviewing and analyzing association documents to correctly answer the questions on rights of first refusal and other legal issues should be handled by your association attorney and then provided to management for future use thereafter. Further, if the management contract does not provide for charging for estoppel certificates, the Board will need to approve a resolution in order to do so.

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

Communication With Your Attorney

Most attorneys are adept and accustomed to using a variety of forms of communication with their clients. Most attorneys will also charge for communications with their clients, so clients should consider what is best, not only in the context of cost, but also what is best for providing and receiving legal advice. As an attorney representing community associations, one of the most satisfying aspects of that practice is being able to efficiently answer questions and providing legal guidance to my clients. However, I know that certain methods of communication work better for some clients. If you prefer communication by mail, e-mail, facetime, text, or in person, make your preference known to your attorney.

If you are a community association manager, I can offer you the following seven (7) observations to assist in effective communication with counsel:

  1. Designated Point of Contact. The Association should designate one person to communicate with the attorney, while providing copies of that communication to all board members in a confidential setting. If we assume that the typical board of directors has five members, the association does not want to pay for five separate communications with the attorney regarding the same subject matter, plus a communication between the community association manager and the attorney. The attorney does not need to receive six almost identical communications regarding the same issue. The community association manager typically has good communication skills and can succinctly state the legal issue and related questions, therefore, he or she is often the best choice for both the association and the attorney. Sometimes, one or more board members wants to assume this role. The association is the client, therefore, this is their choice to make.
  2. Ask Specific Questions. The attorney’s response and legal advice are responsive to the question presented. Therefore, a full statement of the relevant facts and a clear statement of the question will provide the most valuable and legally accurate response to the association’s question. Providing an incomplete (intentionally or unintentionally) or inaccurate set of facts may result in the attorney providing an incorrect or even useless response answer to the association’s actual question. This is not the time for secrets, selective omissions or hiding facts from your attorney. Even small details may have legal significance to your issue and to your attorney. Most attorneys will respond to the question as presented and will not make an assumption that the association actually had a different question to be answered. Asking the correct question should yield the most accurate answer, not just the answer that was wanted. Therefore, the statement of the facts and the composition of the question should be given the appropriate attention to detail.
  3. Confidentiality. Communications with counsel regarding legal issues are confidential and privileged. Directors should be reminded of that fact on a regular basis. Many attorneys will mark all such communications “Attorney/Client Confidential” and you should do the same. Attorney/client confidentiality may be waived by sharing copies of the communications with any person who is not on the board of directors, therefore extreme caution is required when handling communications with counsel. Please do not share legal opinions with other managers or board members from another community, unless the original recipient gave you written consent to do so.
  4. Official Records. Communications with counsel should be segregated in a file clearly marked “Attorney/Client Confidential” to avoid the inadvertent disclosure of confidential communications. These documents containing legal advice of counsel or attorney’s work product are not available for inspection and copying by unit/lot owners.
  5. Costs. While we recognize that no one likes to pay attorney’s fees, a short consultation with counsel can often save the association significant funds when the association implements the contemplated action. For example, having contracts reviewed by counsel is a highly recommended defensive action by a board of directors. It is much easier to decide to not enter into a contract due to legally objectionable terms than it is to get the Association out of that same contract after it has been entered into without the advice of counsel. It is usually much less expensive to add legally desirable language to a contract than to later face the consequences of the omission. The adage that “contracts are made to be broken” is neither factually nor legally correct. A court will not save your association from a bad contract, if it is an otherwise lawful contract. Contracts are easily created by conduct, even in the absence of a signature.
  6. Communicate, Communicate, Communicate. Your attorney is not a mind reader. It is impossible for anyone to interpret silence. Regular, clear and accurate communication with your attorney can provide you with support and assurance that the board of directors and that the association are operating in compliance with its governing documents and in compliance with Florida law. While it is clear that some legal fees may be a cost of the association “doing business” it is also a form of insurance that is often far less expensive than not communicating with your counsel. Addressing issues and decisions in real time is far less expensive than the litigation that can result from a wrong decision. Communicate early and often.
  7. Document the Response. It is basic that a community association should not rely on the manager for legal advice, but that is what often occurs when the manager is asked to relay or interpret a conversation that she or he has had with association counsel. Request a written response, whether it is a confirming e-mail or a formal written legal opinion each time that you seek legal advice. If you want citations to a statute to cases and references to the governing documents, specify your expectations so that there is no question as to the adequacy of the response. Although most legal advice is not a simple “yes” or “no” it need not be a confusing treatise. There are times when you should not get the response in writing, but there should be a reason for not putting the response in writing when that occurs. You have a right to clear understandable response from the attorney.

Finally, communication increases confidence and comfort. There is no (legal) question that should not be asked, if it is a question that you or a member of the board of directors may have. Keep the lines of communication open with your attorney.

 

Steven H. Mezer

Board Certified Condominium and Planned Development Law Attorney, Becker
Tampa
 | bio

 

water leak

The Subrogation Situation

With increasing frequency, insurance companies that provide unit owner insurance are suing community associations to recover payments made to the unit owner that are related to water leaks in the unit. The problem with these lawsuits is two-fold. First, the insurance companies are waiting years to bring them, although still within the statute of limitations for the lawsuit, but nonetheless to the detriment of the community association’s defense of the case as records and memories fade overtime. Secondly, the cases are many times brought in small claims court as a result of the insurance company seeking at most $5,000.00 in “reimbursement” from the community association. The issue with defending a small claims court case is that the cost of defending the lawsuit can be more than the amount the insurance company is seeking which puts pressure on the community association to simply settle. The basis of the insurance company’s lawsuit against the community association is negligence; the insurance company claims that the association had a duty to take some action, failed to take the action and such a failure led to loss that resulted in the insurance payment to the unit owner.

What can be done to limit a community association’s exposure to such lawsuits? First, the community association should consult with its attorney to determine if an amendment to the declaration for the association should be adopted related to subrogation. Next, community associations need to promptly respond to complaints related to leaks and properly document repair work in a detailed manner so that the location and extent of work is easily understood. The documentation related to repair work should be kept for 7 years and be readily accessible. Community associations should perform routine maintenance and inspections of property that the association is required to maintain in order to identify in advance of a water leak areas of needed maintenance. Lastly, anytime there is a water leak or other casualty to unit, the association must thoroughly document, in writing, what happened to cause the leak, what was done in response to the leak and all communications between the association, the unit owner and the unit owner’s insurance company and adjuster. Such documentation should be shared with the community association’s attorney and kept in the association’s official records.

 

Marielle E. Westerman

Marielle E. Westerman

Construction Law Attorney, Becker
Tampa | bio

 

electronic voting

Does Electronic Voting For Community Associations Really Work? How Do You Implement?

Q: I heard that the law in Florida recently changed and that owners in community associations can now vote electronically. What is required to implement electronic voting in my community?  And does it really work? A.A. via e-mail

A: You heard correctly. During the 2015 Legislative Session, a new law was passed authorizing condominiums, cooperatives and homeowners associations to conduct elections and other owner votes through an internet-based online voting system. In the spring of 2016, the Department of Business and Professional Regulation adopted administrative regulations to implement the new electronic voting statutes for community associations.

The first step is for the Board to decide if they wish to offer electronic voting to their members by adopting a resolution. The resolution will establish the procedures and deadlines for owners to consent to electronic voting and, thereafter, opt out of electronic voting (if desired). Written notice of the board meeting at which the resolution will be considered must be mailed, delivered, or electronically transmitted (where an owner has consented in writing to receive official notices by e-mail) to the owners, and conspicuously posted at least fourteen (14) days before the meeting.

The next step is for the Board to select an operating software system to utilize and administer the electronic votes. The administrative regulations require the use of sophisticated operating software which will enable the electronic voting website provider to accurately tally votes and be able to defend the result. The operating software also needs to be able to preserve the secrecy of owner votes in the election of directors. There are several different vendors who offer operating software to community associations for a fee. Most of the vendors utilize a similar electronic voting format: (1) the association provides a roster of eligible voters, (2) a unique PIN number is sent to the e-mail address provided by the owner, (3) owners are asked to create a user name and password to log on to the website; and (4) the owner votes electronically.

The Board does not have the right to force owners to vote electronically. Owners have the option to decide if they wish to vote electronically. Owners who do not consent to vote electronically must still be permitted to vote the “old fashioned” way via paper. At the membership meeting the electronic votes and the paper votes are tabulated together and the voting results announced.

Electronic voting does work. Several of my association clients have successfully used electronic voting at their meetings and elections. I predict that electronic voting will become commonplace very soon. The days of shuffling through stacks of paper at association annual meetings may soon be over.

 

David G. MullerDavid G. Muller

Board Certified Condominium and Planned Development Law Attorney, Becker
Naples | bio

 

 

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