FCAP Community—October 2019

FCAP Community

Published October 2019

       Florida Community Association Professionals’ (FCAP) training is offered on two levels. Level one consists of courses meeting Florida’s continuing education requirements for CAMs, and level two is the Florida Advanced CAM Studies (FACS) courses. For further information about the more than 50 online continuing education classes available or to pursue the Certified Florida Community Association Manager (CFCAM) designation, please visit www.fcapgroup.com/membership/education-training/.

Joney Kelly Attains CFCAM Designation from FCAP

FCAP (Florida Community Association Professionals) recently certified Joney Kelly, community association manager for Heritage Palms Golf and Country Club, for her accomplishments in passing the requirements to become a Certified Florida Community Association Manager.

For the past 14 years, Joney has served as the community association manager for Heritage Palms Golf and Country Club. Before acquiring the CAM position, Joney worked for three years as the administrative assistant for Heritage Palms. During her tenure at the community, Joney has worn many hats. She designed the club’s first three websites, has participated in multiple areas of the human resources department, and served as the community decorator at various times. In addition to her wide range of experience in the community association industry, Joney has worked as a certified firefighter, first responder, and fire prevention specialist.

When asked what issues are facing community association managers in 2019, Joney responded, “Adapting to changing demographics and preparing for multiple generations and increasing diversity.  Also, updating new technology for procedures for communications, meetings and voting, decision-making such as amendment approval procedures, dealing with environmental and energy factors, and expanding online information.”

She explains what led to her decision to pursue the CFCAM designation. “I wanted to explore more areas regarding association operations, system and equipment maintenance, finance, budgeting, customer service, resident relations, staff and vendor management, compliance, and more.”

Joney is an example of excellence in the industry. Congratulations again to Joney for obtaining her CFCAM designation!

Thomas Renner Earns His CFCAM Designation from FCAP

This past summer, FCAP (Florida Community Association Professionals) was able to award Thomas Renner, community association manager for Tradewinds Condominium in Volusia County, his certificate of completion for passing the requirements to become a Certified Florida Community Association Manager.

Originally from Connecticut, Thomas moved to Florida in the early ’90s and opened a tanning salon. It was very successful, and he says, “Because the business was and still is running well, I was not needed there as often, and I decided to take a job at Tradewinds Condominium in 2010 as part of the maintenance team.” After six years of maintenance work, he was given an opportunity to take over the CAM position in 2015. He remarks that after the community lost their manager suddenly, “I felt it was my obligation to get my license and keep this amazing community going strong. The board and owners were behind me in the decision to become the new manager, and I have a fondness for the community.”

Thomas says that he decided to pursue the CFCAM designation for various reasons. How-ever, he comments, “This industry changes often, and knowing that I have the resources and training to make smarter and more educated decisions that better my community is a plus in my book. Managers have a duty to make the best out of our communities, and I intend to do just that.”

One challenging aspect to his job is the diverse personalities of the owners in the 96 units. Thomas notes, “Trying to find the balance to make all of the owners happy or at least content can be challenging.”

At the same time, he finds it rewarding when he can take a situation that appears to have no great end result but turn the situation around so that it not only works but betters the community. Thomas comments, “I like a challenge and the ability to think outside of the box, and when this leads to a great outcome, it is very rewarding for me.”

Thomas’s love and desire to better Tradewinds Condominium is an example of excellence in the industry. Congratulations again to him for obtaining his CFCAM designation!

Betsy Barbieux

Because You Asked
By Betsy Barbieux, CAM, CFCAM, CMCA

     I am very sorry to bother you, but I can’t find this information.  When you have an annual election for the board, all sheets are in an envelope. Are you required by law to keep the envelope that the ballot came in?
     Also, when a board has a meeting with a lawyer, do you have to share this information with the owners?  I thought this was attorney/client privilege.   
     Thanks in advance for your help.
– Sandi

     All ballots, the ballot envelopes, and the return envelopes and tally sheets are to be kept for one year. You’ll find the election requirements in both the Chapter 718, Florida Statutes, and a lot in the Florida Administrative Code. Here is the specific language from Rule 61B23.0021:

(14) Notices of election, notices of candidacy for election, information sheets, voting envelopes, written approval of budgets, written agreements for recall of board members, ballots, sign-in sheets, voting proxies, and all other papers or electronic records relating to voting by unit owners shall be maintained as part of the official records of the association for a period of 1 year from the date of the election, vote, or meeting to which the document relates.
     Meetings with the attorney are closed to owners. The notes and minutes are not available for inspection until the matter is resolved. Afterwards, there may still be information in the notes/minutes that should be redacted.
– Betsy

     I was wondering if you could provide clarification for me, or if I’ll need to speak with an attorney. When an estoppel is created and a fee is charged for the creation of the estoppel, is that fee due to be returned to the requester if the property doesn’t close?
– Sara

     Here is what the statute says, in part! But, as always, check with your attorney.
     Section 718.116, Section 719.108, and Section 720.30851, Florida Statutes, the following estoppel request is submitted: Assessments; liability; lien and priority; interest; collection.— 
     (h) The authority to charge a fee for the preparation and delivery of the estoppel certificate must be established by a written resolution adopted by the board or provided by a written management, bookkeeping, or maintenance contract and is payable upon the preparation of the certificate. If the certificate is requested in conjunction with the sale or mortgage of a unit but the closing does not occur and no later than 30 days after the closing date for which the certificate was sought the preparer receives a written request, accompanied by reasonable documentation, that the sale did not occur from a payor that is not the unit owner, the fee shall be refunded to that payor within 30 days after receipt of the request. The refund is the obligation of the unit owner, and the association may collect it from that owner in the same manner as an assessment as provided in this section. The right to reimbursement may not be waived or modified by any contract or agreement. The prevailing party in any action brought to enforce a right of reimbursement shall be awarded damages and all applicable attorney fees and costs.
– Betsy

     I have an election for a board right now at one of my COAs. A member of the board sent out an email to the owners supporting one of the candidates. I am trying to see if there is a law that is against this, making it an unfair election. My president has asked me about this. Any insight?
– Kimberly

     Owners may certainly campaign for their favorite candidates. The problem is when that owner is also a board member. You have to think of the perception. Often anything said or done by a board member even if he or she is acting in his or her role as an owner is perceived as being from “the board.” Common sense would say the owner/board member should not endorse a candidate.
     However, there doesn’t seem to be an exact answer to your question, but here is what Rule 61B23.0021 says, in part:
     (3) A board of administration shall not create or appoint any committee for the purpose of nominating a candidate or candidates for election to the board. A board may create or appoint a search committee which shall not have the authority to nominate any candidate but may encourage qualified persons to become candidates for the board.
     (8) In accordance with the requirements of Section 718.112(2)(d), F.S., the association shall mail or deliver to the eligible voters at the addresses listed in the official records a second notice of the election, together with a ballot and any information sheets timely submitted by the candidates. The association shall mail or deliver the second notice no less than 14 days and no more than 34 days prior to the election. The second notice and accompanying documents shall not contain any communication by the board that endorses, disapproves, or otherwise comments on any candidate. Accompanying the ballot shall be an outer envelope addressed to the person or entity authorized to receive the ballots and a smaller inner envelope in which the ballot shall be placed.
– Betsy

Marcy Kravit

Tips in Maintaining Transparency in Your Condominium Association
Marcy L. Kravit, CMCA, AMS, PCAM, CFCAM
Florida Community Association Professionals (FCAP) Education and Training Coordinator
AKAM On-Site Managing Director

     The very word “secrecy” is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and to secret proceedings. 
– President John F. Kennedy

     For a time-sensitive issue, if a group of condominium board members decides to have a meeting with a vendor/contractor/engineer and a quorum of the members want to be in attendance for that meeting, would it be a violation of the Florida statutes if they are present but not making a decision?”

Just to clarify, it is always recommended to consult with the association’s attorney to confirm and answer any questions that may present a challenge. I am not an attorney and cannot interpret the law. I can only restate the statutes and provide an opinion based on my years of experience in management.

     As we are all aware, according to the Florida Statutes, Section 718.112(2)(c) Condominium Act, it is required that condominium associations post meeting notices for all meetings of the board of directors in a public place at least 48 hours prior to those meetings (or in accordance with the association’s governing documents…some associations require greater advance notice). 

     The state statute applies to any gathering of a quorum of the board where association business is conducted. There is no requirement that motions be made or votes be taken for a board meeting to occur.

     If a board is meeting to interview potential vendors and a quorum of the board is present, this meeting would be considered a board meeting conducting association business, and the meeting is subject to the statutory requirements.

     With regard to making purchases which are not part of ongoing, recurring itemized expenses included in the approved annual budget, they must be voted on and approved or may be ratified by the board of directors at a properly noticed board meeting. 

     There are several exceptions to this rule, but the most common is for expenditures for emergency items and purchases that fall under a pre-approved budget/spending limit (i.e., the board may vote, or it may be outlined in the management agreement to allow the president/manager to approve expenditures allocated for an agreed dollar amount for routine/preventive maintenance, repairs, and operational expenses). 

     The board may streamline expenditures for minor repairs and replacements to the common areas, building components and systems, and/or fixtures/furnishings, establishing specific criteria for such approvals with a written resolution and policy voted on by the board. This policy should be documented in an open meeting and included in the association’s meeting minutes. 

     However, for major improvements or upgrades—i.e., capital improvement projects—all proposals should be included on the board meeting agenda for board approval. 

     The board may choose to set a dollar amount to define “major” expenses, such as any item that exceeds a specific dollar amount or is five percent of the association’s total operating budget. Those purchases made would then need to be ratified at the next properly noticed board meeting.

     Section 718.112(2)(c) of the Florida Condominium statute specifically provides that members of the board may use email as a means of communication; however, they may not cast a vote on an association matter or make major decisions via email unless it is an emergency.

     Conversely, many of the day-to-day management and operations decisions of the association do not require a board vote, particularly when implementing matters which have already been authorized by the board or included in the annual budget.

     The manager and/or a board member may want to obtain input or a consensus from fellow board members via email on a particular course of action regarding a specific type of situation or incident.

     Some condominium associations’ governing documents allow for the board to take action without a meeting by unanimous, written consent signed by all the board of directors. 

     According to https://thecondoandhoalawbulletin.com/2018/ 06/05/voting-by-e-mail-and-written-consent/, Section 617.0821 of the Not-For-Profit Corporation Act provides as follows with regard to action by directors without a meeting:

     Unless the articles of incorporation or the bylaws provide otherwise, action required or permitted by this act to be taken at a board of directors’ meeting or committee meeting may be taken without a meeting if the action is taken by all members of the board or of the committee. The action must be evidenced by one or more written consents describing the action taken and signed by each director or committee member.

     Action taken under this section is effective when the last director signs the consent, unless the consent specifies a different effective date.

     A consent signed under this section has the effect of a meeting vote and may be described as such in any document. Section 617.0821, Florida Statutes, and many condominium and homeowners associations governing documents allow action by unanimous, written consent but avoid using the word “vote.” 

     Most importantly, all directors must express their consent unanimously. The directors must also receive a complete detailed description of the proposed action, and they must “sign” the consent. The signature gives some reassurance that the board member actually consented.

     If an association takes action via written consent, it is recommended that the proposed action be clearly described and that the board consent be expressed in unequivocal terms. The consent should not be accompanied by any contingencies such as “yes, but contingent upon ….” The written board consent should be expressed on the communication with a signature, and the communication should be dated. Each signed, written consent should be kept with an association’s minutes as part of the association’s official records.

     There are certain actions which may specifically require approval of the board under the condominium documents. It is recommended to consult with the association’s attorney as to whether or not obtaining a written consent is an option and the extent to which those approvals can be delegated to an individual officer, a committee, or management.

     As you are probably aware, there are exceptions to the requirement of conducting open meetings, such as meetings with the association’s attorney to receive attorney-client privileged advice concerning proposed or pending litigation, or when the board is meeting to discuss personnel matters. All other board meetings must be open and noticed to the unit owners.

     According to https://near say.com/c/338074/26639/board-transparency-issues-and-considerations-for-florida-condominiums-and-hoas, in order to maintain and ensure transparency, a summary of recommendations for the board to consider may include the following:

  • Board meetings should always be posted in advance in accordance with Florida statutory requirements and the association’s documents.
  • Any time a quorum of the board is present, association business can only be discussed if it is in the context of a properly noticed open board meeting.
  • Florida Statutes permit a private, or “closed,” board meeting for the following: meeting with the association’s legal counsel on current or pending legal matters, or discussing personnel matters. 
  • No other association business may be discussed at these types of meetings, and they must be properly noticed in accordance with Florida statutory requirements. 
  • Only expenditures that qualify as minor “repairs and replacements” items, ongoing expenses that are included in the annual pre-approved budget, and/or emergency expenses may be processed without board approval at an open board meeting.
  • These expenditures should be itemized, reported, and ratified at the next board meeting and retained as official records that are accessible to owners, upon request.
  • Upgrades to any part of the building, systems, furnishings, and services, which do not qualify as replacements for defective items, should be approved at an open board meeting and may first require a membership vote. Especially when considering “material alterations” of the common areas, membership approval by a percentage of the unit owners may be necessary, depending on your association’s bylaws and/or the Florida Statutes.
  • If there are private meetings and discussions regarding association business and matters that exclude unit owners and other board members, it can appear that the board is not working cohesively and that there may be two factions—a board within the board. The goal is to work as a team to establish a cohesive board. All boards are encouraged to utilize their manager and managing agent, individuals with a wealth of talent, information, experience, and resources, to assist boards in making educated decisions.
  • Unit owners may also be a resource for valuable information and have knowledge and expertise about a certain topic of discussion from their work experiences. The board may benefit from their expertise and gain valuable information, and it can encourage volunteer participants by conducting open meetings discussing business in a public forum.

     There are liability concerns to consider if the board does not follow Florida Statutes or the association’s documents. There is also a risk that owners will not trust board decisions that are NOT discussed and approved in a properly noticed board meeting, which may potentially create suspicion and retaliation.

     If the board follows the above recommendations, it is most likely that it will minimize these risks and the board will earn the unit owners’ trust and respect for their efforts in providing transparency and open communication. It is recommended to utilize the association’s website and disseminate a newsletter and email blasts to keep the owners informed.

     Transparency creates harmony, good communication, and cohesive relationships for a successful association!

     *It is always recommended to consult with the association’s attorney for the drafting and mailing of meeting notices and to discuss the requirements regarding the information outlined in this article.*

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FCAP Industry News

     GNM Hough celebrated its 10th anniversary in September, and we would like to thank all of our customers who have believed in us and made our progress possible!

     For more information on GNM Hough, call (954) 797-6886 or visit www.gnmhough.com.