Managers Report newsletter

Picking a Good Attorney

Is Picking a Good Holiday Wine like Picking a Good Attorney?

As we approach the holidays, we often find ourselves in the hunt for a good bottle of wine to give as a gift. Each year the process of selecting a bottle of wine reminds us of challenges of picking a good attorney. How do we know when we have selected the right wine for the occasion or the right attorney for the project? On reflection, the considerations in making the selections are very similar.

Stores

It seems like we can find wine sold in grocery stores, gas stations, pharmacies, and even in some department stores. Similarly, lawyers are in homes, strip malls, bank buildings, and office complexes, among other locations. Although one may find an excellent wine being sold in a gas station, it is a given that there is a better chance of finding that fine wine in a store that sells wines. So it is with attorneys, you may find an excellent attorney who practices out of his or her home, but you are more likely to find a skilled attorney working in a professional office for a law firm that includes the exact type of law that you need.

Bottles

Wine comes in attractive bottles of different shapes and sizes, some looking traditional and others stylized to catch your eye. Attorneys likewise have a wide variety of appearances, some traditional and some progressive. Can you judge the quality of the wine by the appearance of the bottle and more importantly for our discussion, can you judge the quality of the lawyer by his or her appearance? Human nature tells us that, yes, we want the bottle of wine to look impressive much like we want our attorney to look appropriate for the task. So we conclude that appearance is a factor, whether we like it or not. But, is it true that good wine must be in an appropriately attractive bottle? No. The same is true for lawyers; appearance is not an indication of quality.

Names

As we pass by the wide variety of wines on display, there are names that we recognize. There are names we do not recognize. Sometimes an exotic name creates an aura of being special, but sometimes an unfamiliar name is a signal of a one-off, somewhat out of place, and not likely to impress. For lawyers, it is much the same, as there are names that represent quality while other names are unknown or even out of place as you make your search for an appropriate attorney. Just as it is highly unlikely that an automobile manufacturer will create a wine appropriate for your occasion, it is also unlikely that an attorney whom you know for providing excellent advice in maritime law would provide you with that same high quality advice in community association law and vice versa.

Labels

The label on a bottle of wine may indicate that it was made with the finest ingredients in a faraway country. That sounds exotic and therefore creditable in the world of wine, however is it any different than the label applied in marketing by your prospective attorney indicating his or her traits and legal pedigree? Should you not check on the experience of the wine distiller and the actual experience of the attorney being reviewed? The answer is, yes. The winery creates the label. The lawyer creates his or her marketing. You are not buying labels. You are buying wine or hiring an attorney. Don’t be sold by the label.

Awards and Ratings

Distinguishing oneself in a competitive industry such as fine wines, or the practice of law, is challenging. To complicate matters for the consumer, there are many ratings and award systems and sources, some more reliable and objective than others. Unfortunately, there are some organizations which, for a fee, will publish and promote a wine or a lawyer with virtually no vetting process. Just as when selecting the right wine, the consumer should view such recommendations with healthy skepticism and scrutiny, look beyond the appearance created by accolades. The attorney best suited to handle your issue should be specifically experienced in the right legal specialty, rather than in a “blend” of general experiences which do not provide the nuanced knowledge that is critical to properly handle legal challenges. Look beyond the shiny appearance of awards and ratings and judge the lawyer by his or her fitness and experience to handle your legal issue, much like you should judge the wine for the occasion.

Descriptions

Descriptions abound in the advertising of law firms as well as wines. Is your attorney “aggressive?” Is your wine “bold?” Do you want those characteristics, and do you even know what that means, practically speaking? Descriptions of a lawyer’s characteristics, as in wine, may be somewhat helpful and illustrative of what to expect; however, a description is just based on someone else’s opinion, generally someone trying to persuade the consumer. Choosing the right attorney should not be based on passionate, descriptive language alone. To ensure the right fit, do not be solely convinced by descriptions; look for an attorney with the depth of quality only created through experience. The same, they say, for wines. We are skeptical of a 2019 vintage wine, probably with good reason.

References 

We like to ask the clerk in the wine store to recommend a bottle. We can accept or reject the clerk’s recommendation, but it is almost certain that the clerk behind the counter in the wine store knows more about wines than we do. In picking an attorney to represent a community association, seek references from people who know community association attorneys. The best references come from people who work in the area of law. He or she may be a judge, a lawyer, an accountant, a community association manager, or an engineer, if that person has regular contact with attorneys providing services to community associations. You are free to accept or reject those references. Consider the source and his or her opportunity to know quality just as we consider the recommendations of the clerk behind the counter.

Age

A newly minted attorney and a newly bottled wine may have a lot in common. They look good on the outside, but it is what’s inside that counts. Does your wine just taste like grape juice, or is it a carefully aged delicacy befitting the occasion for which it was chosen? Is your attorney fresh out of school, eager to aggressively represent you, but without experience applicable to your issue? Or, has your attorney dealt with your specific problem before? If so, how many times and under what circumstances? Has your attorney successfully reached settlements for other clients dealing with your legal problem?

Keep in mind that passing the bar exam and obtaining a license to practice law is an accomplishment as is bottling a brand new wine. Exciting and long-anticipated, to be sure; however, passing the bar exam only demonstrates a grasp of the minimum foundation of understanding needed to practice law; and sometimes, a new bottle of wine is just fermented grapes. Experience, specific to the applicable area of law, is what provides the breadth and depth to successfully resolve your legal issue.

Free Samples?

The wine distributor’s representative in the grocery store will happily give you a taste of wine for free, hoping that you will buy the bottle. However, you can be certain the free sample is not from the carefully aged bottle of reserve. A fine bottle of wine does not need free samples to sell itself. This is a good example of “you get what you pay for,” and similarly applies to legal representation. When a lawyer offers below-market prices, or “freebies” to handle ancillary issues if you also bring other work to their firm, you may find yourself getting unfavorable outcomes, which can require exponentially more expensive fixes later, or worse, result in losing an opportunity forever. Picking an experienced attorney, qualified with the depth of knowledge to advise you correctly from the beginning, will not be free, or even cheap. However, in the long run, in legal representation, you get what you pay for and choosing an attorney because he or she is inexpensive (or free) may leave you disappointed and possibly paying heavily later on.

Cost

Does anyone want to give a cheap bottle of wine as a gift? We suspect that you would prefer to have an appropriately priced bottle; one that represents you well. The same concept applies to attorneys. A cut rate attorney is easy to recognize, like the cheap bottle of wine, and in the end neither provides value. Yet we know that many of us could not tell the difference between an expensive wine and a moderately priced quality wine. Here, there may be a difference. The attorney working at the “cheap” rate may take longer to accomplish the task. Assuming that the task is completed as it should be and ends up costing much more than the “expensive” attorney who charges that rate because he or she is worth it and does get the task completed efficiently, which attorney would you choose? That attorney may have years of experience, legitimate credentials that set him or her aside from his or her peers, and with experience that yields efficiency and quality and after all, isn’t that what you are looking for in your lawyer?

So, no easy answers, just considerations. Given the market place is crowded with so many bottles to choose from, pick the best quality that you can afford, based on doing your homework before you enter the store and do the same before you hire the lawyer.

 

Steven H. Mezer

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

 

 

Carolyn Meadows

Attorney at Law, Becker
Tampa
 | bio

 

sea

Sea Level Rise: Forewarned is Forearmed

We have all heard the environmentalists’ cry about the Dead Sea shrinking. Water levels are falling at an average rate of three feet per year due to evaporation and human diversion of tributaries. The opposite conundrum sea level rise is not occurring quite as rapidly but is equally as concerning.

Sea-level rise is an important issue which cannot be discounted by Florida communities, especially coastal ones, if they want to be resilient and prepared for expected adverse effects. The statistics for Florida are not encouraging. Miami has the most to lose in terms of financial assets of any coastal city in the world, just above New York City. Florida has more residents at risk from sea level rise than any other U.S. state. Relative sea levels in South Florida are roughly four inches higher now than in 1992. The National Oceanic and Atmospheric Administration predicts sea levels will rise as much as three feet in South Florida by 2060.

Thus far, government and municipal action seems lacking. Some cities have approved bonds for measures such as shoreline stabilization, storm drainage improvements, elevating sea walls, and raising roads. Municipalities also need to address legal issues, such as changing building and zoning codes, eminent domain, land takings, and tax incentives for developers, among others.

In addition, the legal implications of sea level rise in Florida, at every level, are vast. When the state or local municipalities enact stricter building elevation requirements and developers elevate new construction, what will happen to adjacent properties which have lower elevations? This would likely cause water run-off and flooding on adjacent parcels which may, in turn, create private litigation in neighbor vs.  neighbor  disputes  based  on  negligence  or  nuisance concepts. Suddenly your older condominium is being flooded by water run-off from the new building next door which is at a higher elevation. Aggrieved owners might sue local governmental agencies, planners, realtors, and even their own real estate transactional attorneys.

Condominium and homeowner associations are quasi-governmental microcosms which also need to be proactive to protect their residents’ property values. Boards may likewise face liability for failing to take preventive measures to avoid water intrusion. There are important factors for boards to consider, such as planning for the financial impact of mitigation efforts through reserve funding. A reserve study can help plan for necessary capital improvements and address underground facilities such as garages and drains. If your community is on the water, consider raising the seawall. If your community is undergoing a 40 or 50 year recertification, consult with your electrical contractor to see if any adjustments can or should be made to low-lying electrical wiring and outlets even if not yet required by code. Review the municipal codes which affect your community. Boards should begin taking proactive steps now to address future needs.

While sea level rise is nowhere near as dramatic as the Dead Sea’s sea level drop, there are many factors which need to be considered by Florida communities to mitigate the adverse impacts. The question with tides is not whether they’re rising, but when will a significant impact be felt? Efforts and energies can be focused on beginning to prepare for your community’s future needs, including addressing a myriad of legal issues.

 

Steven H. Mezer

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

 

tree-roots

The (Tree) Root of the Problem: Who is Responsible when Tree Roots and Branches Cause Damage?

They say good fences make good neighbors. But trees, on the other hand, have been known to strain the relationship between neighbors. Damage and disruption amongst neighboring lot owners, caused by tree roots and branches, is a very common problem in Florida. Not surprisingly, Florida courts have addressed this issue and have carved out a very specific rule of law on this topic.

There are two theories which have been brought before Florida courts in an attempt to hold adjacent property owners liable for damage caused by trees encroaching past the property line. They are actions for nuisance or negligence. However, neither action has succeeded. The Third District Court in Vaughn v. Segal, 707 So.2d 951 (Fla. 3d DCA, 1998), held that there is no cause of action in such circumstances in either nuisance or negligence.

In Richmond v. General Engineering Enterprises Co., 454 So.2d 16, 17 (Fla. 3d DCA, 1984), the plaintiff sued for money damages based on the alleged “negligence” of the defendant in permitting branches of a ficus tree growing on its property to extend over and onto the next lot where the plaintiff’s home was located. While the Court acknowledged that there was substantial authority to the contrary in other States’ jurisdictions, the Court took the position that in Florida, “in view of the undoubted right of the land owner himself to cut off intruding roots or branches at the property line, no such action may be maintained.”

As for nuisance, the rule of common law and the majority rule in this country, which is followed in Florida, is that a possessor of land is not liable to persons outside the land for a nuisance resulting from trees and natural vegetation growing on the land. The joint property owner to such a nuisance, however, is privileged to trim back, at the adjoining owner’s own expense, any encroaching tree roots or branches and other vegetation which has grown onto this property. While the complaint claimed certain damages for a nuisance allegedly created by the trees growing on the neighboring land, such damages were not recoverable under the established law of this State. Gallo v. Heller, 512 So.2d 215 (Fla. 3d DCA, 1987).

As a result of the above referenced rule of law in Florida, many community associations refuse to get involved in these types of “owner versus owner” disputes. The law gives owners the right and obligation to have the tree roots and branches cut at the point when they “cross over” onto their property.

 

Steven H. Mezer

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

 

FHA

FHA Issues New Rules Regarding Condominium Approvals

Many of you are aware that the Federal Housing Administration (FHA) insures financing to owners for their purchase of a home.  These homes include condominiums in condominium associations.  FHA loans are great for new home buyers, or those who cannot afford a large down payment, as they typically require a lower down payment.  In regard to condominiums, the entire condominium association / building has to be approved by the FHA in order for applicants to qualify for an FHA insured loan. 

Some condominium associations go through the exhaustive FHA approval process, some choose not to do so.  Some associations want to be FHA approved to facilitate sales; some associations do not want to be FHA approved because they do not like the low down payments and low initial owner equity in the units.  If an association is not FHA approved, the FHA will not insure financing in that community.  If a prospective purchaser wanted to move into a non-FHA approved building utilizing an FHA insured loan, they could not do so, and had no options, other than securing other than FHA insured financing, to buy in that building.

In an effort to promote affordable and sustainable homeownership, the FHA recently published a new final regulation and policy implementation guidance, establishing a new single unit condominium approval process.

Previously, if you wanted to purchase a condo using an FHA loan, you had to choose a unit that was located within a previously approved condominium project. The entire building had to be FHA approved before a person could buy an individual unit with an FHA-insured mortgage loan.

The new FHA rule introduces a new single-unit approval process to make it easier for individual condominium units to be eligible for FHA insured financing.  The new rule also extends the recertification requirement for approved condominium projects from two to three years, and allows more mixed-use projects to be eligible for FHA insurance.

The new rules create a pathway for an individual owner to get an association FHA qualified.  This owner initiated pathway did not exist before, as only the association itself could apply for, and become, FHA qualified.  The new FHA rules do not affect any possible restrictions in an association’s governing documents, and there is nothing in the new rule to imply that an Association must accept an FHA loan (although an association should certainly to check with its attorney if contemplating not to do so).

According to HUD Secretary Ben Carson, these FHA rule changes could be especially helpful for younger first-time buyers, as well as some seniors:

“Condominiums have increasingly become a source of affordable, sustainable homeownership for many families … Today, we take an important step to open more doors to homeownership for younger, first-time American buyers as well as seniors hoping to age-in-place.”

According to the press release, as of October 15, 2019, individual units in a non-FHA approved association may be eligible for Single-Unit Approval if the individual condominium unit is located in a completed project that is not FHA approved and, for condominium projects with 10 or more units, not more than 10 percent of individual condo units can be FHA-insured; and projects with fewer than 10 units may have no more than two FHA-insured units.

While this new rule opens up a pathway for an individual to qualify a community, the process is almost as complicated as the association qualifying, which may make it challenging for an individual owner to process such an application. 

The HUD press release goes on to state

“The vast majority (84 percent) of FHA-insured condo buyers have never owned a home before. While there are more than 150,000 condominium projects in the U.S., only 6.5 percent are approved to participate in FHA’s mortgage insurance programs.  As a result of FHA’s new policy, it is estimated that 20,000 to 60,000 condominium units could become eligible for FHA-insured financing annually.”

Both associations and potential buyers need to be aware of these changes in the FHA approval process.

The HUD press release can be found at https://www.hud.gov/press/press_releases_media_advisories/HUD_No_19_121, last viewed 1:12 pm on August 20, 2019.

 

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

 

construction

When Construction Occurs Next Door, Your Board Needs to Get Involved Early!

It’s likely that at some point during your community’s lifespan, new construction will occur nearby and the impact on your residents will vary both short and long-term depending on the steps your Board takes early in the process. Sometimes new construction is welcomed enthusiastically by the members of an established community but more often than not, nearby construction strikes dread in the hearts and minds of many residents and board members who fear noise, disruption, debris, impaired views and incidental damage.

Communities facing the prospect of new construction next door should not go “on the attack” but should engage experienced counsel to help them navigate the construction process, set realistic expectations for their residents, reach agreement on protective measures to be provided by the contractor/developer, and receive compensation where appropriate.  If handled properly, the new construction can do much to enhance your community’s value. If mishandled, you could wind up with new construction that encroaches on your land, damages your landscaping and exterior amenities, adversely impacts drainage, and, in severe cases, causes structural cracks in your buildings.

Naturally, the individuals or corporate entity driving the new construction want your community’s support to sail through the governmental approval process. Boards who feel that their concerns and issues have been properly addressed by the developer next door will be much more likely to provide that support.

There are many factors to discuss and consider with the developer including the intensity of the proposed use, traffic, compatibility issues, construction management, easement agreements, rezoning, and other material issues.  Municipal Land Developer Codes usually require public participation so starting a dialogue early in the process affords your Board with an opportunity for your community and the developer to speak with a unified voice and to address major issues and concerns before being heard in a public hearing.  The developer will certainly want to address your concerns in private rather than face them at a public hearing.

Some common issues that should be addressed include:

  • Debris
  • Nuisance
  • Structural impact
  • Encroachments (both on their side and yours)
  • View Impairment
  • Buffering and noise mitigation measures
  • Trademark Infringement (depending on the name of the new community, shopping center, etc.)
  • Security

These kinds of negotiations may take six months to well over a year and will include your counsel attending and speaking at multiple Board meetings, Developer Town Halls, Municipal Public Hearings, researching City Zoning and Land Use, reviewing Mas6ter Plan Design guidelines, clarifying construction issues/timelines and negotiating the design to take into account view-lines, setbacks, traffic, loading, etc.

If you serve on an association board, you well know that directors are sometimes held responsible by some community members for issues completely outside your control. Don’t let neighboring construction become another boiling point in your community.

 

Donna Berger

Shareholder, Becker
Fort Lauderdale | bio

 

insurance puzzle

Putting the Puzzle Together Regarding Insurance Coverage and Exclusions

In those pages and pages of insurance documents detailing your available insurance coverage you’ll also find exclusions explaining what is not covered in your insurance policy. There might, however, be some exceptions to those exclusions that should keep the claim from being excluded under the policy. Confused yet?

That knotted paradigm is illustrated in a case that was decided by the Florida Supreme Court. In John Robert Sebo v. American Home Assurance Company, 208 So.3d 694 (Fla. 2016), the Florida Supreme Court was asked to determine whether coverage existed under an all-risk policy when multiple perils combined to create a loss and at least one of the perils was excluded by the terms of the policy. The court concluded that coverage did exist in such a scenario. In other words, the Florida Supreme Court decided that insurance companies should not deny coverage for property damage just because it had more than one cause so long as the policy covers at least one of the causes.

Let me explain. John Sebo, the insured homeowner, had an insurance policy that covered rain and hurricane damage but not damage from construction defects. His house was damaged during Hurricane Wilma. The investigation showed the damage was because of the rain and construction defects.

The Florida Supreme Court noted that it was “confronted with determining the appropriate theory of recovery to apply when two or more perils converge to cause a loss and at least one of the perils is excluded from an insurance policy.” Two competing theories had to be analyzed in reaching a final decision. The first, the efficient proximate cause (EPC) theory provides that the peril that set the other one in motion is the cause to which the loss is attributable. This meant that in Sebo a trial would have been required to determine which peril was set in motion first.

However, the Florida Supreme Court rejected the application of the EPC theory, preferring the application of the concurrent cause doctrine (CCD).  Under this theory, coverage may exist where an insured risk constitutes a concurrent cause to the loss even when it was not the prime cause for the loss.

Ultimately, the Court in Sebo concluded that there was no reasonable way to distinguish the probable cause of the property loss since the rain and construction defects acted in concert to create the destruction. The Court then looked at the plain language of the insurance policy and found that the policy’s plain language did not preclude recovery.

This confusing paradigm is also illustrated in the case of Bartram, LLC v Landmark American Insurance Comp., 864 F. Supp. 1229, (N.D. Fla. 2012).  That case centered on a dispute between an apartment complex and several insurance carriers. The apartment complex sustained significant water damage caused by faulty workmanship in the building’s construction. While the apartment owners acknowledged that the costs to repair the faulty workmanship itself was not covered, the water (a Covered Loss) that infiltrated and damaged the building should be covered because of the exception. Of course, the insurance companies disagreed and argued that the apartment owners were not entitled to coverage. Ultimately, the Court disagreed with the insurance companies and concluded that the apartment owners were entitled to insurance coverage.

These cases (Sebo and Bartram) illustrate the importance of understanding not just your available insurance coverages but also your applicable exclusions. While you may have coverage for, say, property damage from a hurricane, the insurance company may argue that coverage does not exist as a result of some exclusion in your policy such as faulty workmanship or wear and tear. While the cases I’ve discussed here suggest that in a scenario like that you should be afforded coverage, the fact remains that your insurance company may deny coverage as a result of the exclusion contained in your policy and its “no” should not be readily accepted. Understanding what is and is not covered under a policy is key, as is having an attorney experienced in dealing with carriers in these situations.

 

Hugo V. Alvarez

Shareholder, Becker
Miami | bio

 

Indemnity and the Association By Sanjay Kurian, Esq.

Indemnity and the Association

Indemnification. A scary word and a confusing subject. However, almost all contracts for services contain requirements for one party to indemnify the other from damages. Often these clauses are in small type of allegedly “standard form” agreements. For purposes of today’s blog, let us discuss non-construction services. Indemnification for construction contracts is governed by section 725.06, Florida Statutes which is not applicable to non-construction contracts. Look at any contract you have with a service provider and inevitably the following language, or similar, will appear:

Party A agrees to the fullest extent permitted by law, to indemnify and hold harmless Party B, its officers, directors, members and employees from all liabilities, damages, losses and costs, including but not limited to reasonable attorney’s fees, to the extent caused by the negligence, recklessness or intentional wrongful conduct of Party A.

In layman’s terms, this means that one party (the indemnitor) has contractually obligated itself to protect a second party (the indemnitee) against damages which may result from the indemnitor’s conduct. These damages would include any foreseeable damages resulting from a negligent act or omission, including damages to person or property. Sounds easy enough. However, who is indemnifying whom?

The language most often seen in these contracts is similar language to the form language above:

Association agrees to the fullest extent permitted by law, to indemnify and hold harmless contractor, its officers, directors, members and employees from all liabilities, damages, losses and costs, including but not limited to reasonable attorney’s fees, to the extent as a result of any work done at the Condominium by contractor.

The Association has agreed to indemnify the contractor for work done at the condominium by the contractor. It requires the Association, which does not control the project or those working on it, to protect the contractor. Why would the Association agree to this? Think about the fire alarm monitoring, elevator maintenance or other monthly service provider. Many of these companies perform services, which if done improperly, could result in damage to persons or property and ultimately claims against the Association. Courts will enforce such agreements to indemnify, even if it is a bad deal for one side.

All service contracts should require the contractor to indemnify the Association. If the contractor will not negotiate the term, then another contractor should be considered. These terms, like most contract terms, can be negotiated even if the contractor says such terms are “industry standard.” The Association should be protected from sloppy safety procedures, carelessness or negligence of the contractor. Finally, remember that indemnification in the absence of adequate insurance may be illusory, but that is a subject for another day.

 

Sanjay Kurian, Esq.

Board Certified Construction Law Attorney, Becker
Tampa
 | 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

 

Former Felon Board Member Eligibility

Former Felon Board Member Eligibility

Fla. Stat. §§ 718.112, 719.106 and 720.306 each contain a limitation on an individual’s ability to serve on a community association board of directors if the person is a convicted felon. Specifically, a convicted felon is not eligible to serve on a community association board “unless such felon’s civil rights have been restored for at least 5 years as of the date on which such person seeks election to the board.”

The restoration process for voting rights and a person’s eligibility for such restoration were previously dictated by the rules of clemency that each Florida governor set. Prior to Governor DeSantis, Governor Scott had adopted clemency rules that that differed from prior rules in that:

People with nonviolent convictions had to wait 5 years after they completed all of the terms of their sentence before being allowed to apply for restoration of civil rights.

The 5-year period noted above would reset if an individual was arrested for even a misdemeanor during that five-year period, even if no charges were ever filed.

Certain felons were required to wait seven years before being able to apply to have their voting rights restored, and had to appear for a hearing before the clemency board.

A provision allowing people to apply for a waiver of the rules, in place under Bush and Crist, was eliminated.

Under this system, the Florida Commission on Offender Review had a database that one could search in order to determine if a person’s voting rights had been restored. This database can be accessed at: https://fpcweb.fcor.state.fl.us.  Presently, this database can be used to determine whether a convicted felon can serve on a community association’s board of directors.

The foregoing process has been upended by the passage of Amendment 4 in 2018. Amendment 4 provided that:

Article VI, Section 4. Disqualifications.—

(a) No person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability. Except as provided in subsection (b) of this section, any disqualification from voting arising from a felony conviction shall terminate and voting rights shall be restored upon completion of all terms of sentence including parole or probation. (b) No person convicted of murder or a felony sexual offense shall be qualified to vote until restoration of civil rights.

The intent of Amendment 4 was that a former felon’s voting rights would be automatically restored upon completion of the felon’s sentence. Thus, a former felon would not have to go through the clemency process by applying for restoration of voting rights.

This year the Florida legislature enacted Fla. Stat. § 98.0751 to provide additional provisions related to the qualifications for restoration pursuant to Amendment 4 as well as the process for an election supervisor to determine eligibility. Notably, the Legislature also enacted Fla. Stat. § 98.0585 which provides that out of “public necessity that information related to a voter registration applicant’s or voter’s prior felony conviction and whether such person has had his or her voting rights restored through executive clemency or pursuant to s. 4, Art. VI, of the State Constitution, which is held by an agency and obtained for the purpose of voter registration, be confidential and exempt from public records requirements and be used only for purposes of voter registration.”  Accordingly, a voter registration form submitted to a supervisor of election is confidential and not subject to disclosure. Fla Stat. § 98.0585.   

The difficulty that community associations will face is that it is not easy to determine whether a person has completed their sentence as defined by Fla. Stat. § 98.0751 so as to have their voting rights automatically restored.

First, there is not a central database accessible by the general public of judgments of conviction.  One would have to know the county in which the conviction occurred.  Once that information is obtained, the next difficulty is that many judgments of conviction are not readily viewable online through a clerk of court’s online record viewing system thus requiring obtaining the judgment of conviction from the clerk of court. Lastly, while the determination of whether a person has actually completed their prison sentence may be relatively easy to make, whether that person completed any obligation for restitution and the repayment of court costs and fees is not. 

This determination will likely require the assistance of the association’s attorney. While the effects of Amendment 4 will not be fully felt for a few years, the problems in readily being able to determine a potential director’s eligibility may warrant the creation of a database such as the one maintained by the Florida Commission on Offender Review or a legislative change that would make determining whether a convicted felon is eligible to serve on a community association board of directors more straight forward.

 

Marielle E. Westerman

Marielle E. Westerman

Community Association Law, 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.

 

Steven H. Mezer

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