A Busy Off Season in the Fair Housing World

 In the past few months, while many of the residents in our communities have escaped Florida's heat and humidity, our friends at the U.S Department of Housing and Urban Development have been busy expanding the reach of Fair Housing protections.  

Here are a few of HUD's more notable recent actions on the Fair Housing front:

  • In April, HUD's Office of General Counsel published "guidance" making it more difficult for housing providers to justify denying a prospective owner or renter on the basis of that applicant's criminal record.
  • On September 14, HUD issued its final rule on "Quid Pro Quo and Hostile Environment Harassment"--apparently creating new liabilities for a housing provider in certain situations for allowing a "hostile environment" to exist in the community to the detriment of a person who falls within one of the Fair Housing Act's "protected classifications".
  • Just a few days after that final rule was issued, HUD apparently issued yet another decree--this time providing that persons who speak no or limited English are entitled to Fair Housing Act protections.

In other words, the rules of the Fair Housing game have changed over the summer.   We're digesting HUD's activities and plan on focusing our next community association seminars on the challenges of keeping ROC's compliant with Fair Housing laws.  In the meantime, board members and managers in resident owned communities would be well advised to consult with their legal counsel about any Fair Housing questions they may have.



Time for Board Certification!

 ROC board members can meet their board certification requirement by attending the 6th Annual Community Association Festival at the Venice Community Center on February 17, 2016.   Registration with a free continental breakfast starts at 8:30 a.m.  There will be several informative and entertaining speakers featured from 9 a.m. until 11:45 a.m.  We'll break for a free barbecue lunch at 11:45 and then separate after lunch (and prize drawings) into three groups for specific board certification training that will start at 1:30 p.m..  I'll be doing the training for board members of cooperative associations and two other community association attorneys will be training board members of condominium associations and mandatory homeowners associations.  

The entire event is free and even if you don't need to meet the certification requirement, the opportunities to learn from our speakers--including one of analysts with the Department of Business and Professional Regulation's Division of Florida Condominiums, Timeshares and Mobile Homes--and network with ROC members from the area should not be missed.  Who knows, you may even win one of the door prizes!

Here's the link to register for the event.  Seating is limited and RSVP's are thus needed by no later than February 12.

I hope to see you in your "Mardi Gras" attire at the Venice Community Center on February 17!

Welcome to a Busy 2016!

 ROC board members and managers have several opportunities to network and learn over the next few weeks:

  • I'll be speaking to our friends at EPROC (East Pasco Resident Owned Communities) at their monthly meeting at 9:00 a.m. on Friday, January 8 at the Emerald Pointe community in Zephyrhills.  
  • On Monday, January 11, I'll be presenting one of our community association seminars with another member of our firm,  Jonathan Whitney.  We'll be starting at 1:30 at Imperial Bonita Estates in Bonita Springs.   We'll be discussing recent changes to the laws affecting resident owned communities and the procedures involved in collecting unpaid maintenance fees.   
  • I'll be covering the same topics at another community association seminar at  Sunset Shores  in Frostproof on Wednesday, January 17, beginning at 10:00 a.m.  

Our community association seminars usually last 2 hours or so and include time for attendees to ask us general questions about other issues affecting ROCs.   There's no charge to attend these seminars, refreshments are served and you'll have a chance to meet and mingle with friends and neighbors from other communities.

If you are interested in attending either of these two community association seminars and have not already made your reservation, please RSVP to either Karen Midlam (kmidlam@lutzbobo.com) or Kathy Sawdo (ksawdo@lutzbobo.com) or call either of them at 941-951-1800.

We'll be participating in two separate certification courses for board members in resident owned cooperatives in February and I'll post more about those two events in the near future.

Until then, I hope 2016 brings us all health, happiness, and no hurricanes!

All Eyes on Erika

 Most Floridians know that our real "hurricane season" begins around the time that thoughts turn to football and our students returning to school.   This year is no different as we have been following the progress of Tropical Storm Erika.

Earlier today, Florida's governor declared a state of emergency.  While the path and intensity of Erika remains very uncertain, this is a very good opportunity for a few reminders:

  • Florida statutes grant certain emergency powers to the board of directors of condominium, cooperative, and mandatory homeowners associations in response to damage caused by an event for which a state of emergency is declared.  Managers and board members should review both the appropriate statute and the association's governing documents for guidance in the event that any emergency actions need to be taken.
  • Residents with pets should have already determined what shelters in their area will accept pets as many shelters will not do so.
  • Finally, as I have written before, if and when a mandatory evacuation order is entered for your locale, residents and their guests should leave the community.   Unless the community's clubhouse is a certified hurricane shelter, no one should be using the clubhouse to "ride out" the storm.

The National Hurricane Center is currently posting full updates on Erika every six hours and interim updates approximately three hours after a full update.  If and when Erika approaches Florida's coastline, these updates will probably occur more frequently.

Now is the time to make preparations and to be alert and aware.   Stay safe!

CAMs and the Unauthorized Practice of Law (2015 Version)

Several managers of resident owned communities have asked me to discuss the recent Florida Supreme Court opinion concerning certain activities performed by non-lawyer CAMs.   

The Court was asked whether these activities, if performed by a non-lawyer community association manager, would constitute the "unlicensed practice of law".   On May 14, 2015, the Court issued its decision, which confirmed an earlier advisory opinion (from 1996) and addressed 14 other activities using the 1996 advisory opinion as a guideline.

You'll note that I've included a link to the full text of the decision in the above paragraph for those who wish to read and review it.   

This decision applies to any non-lawyer, not just to community association managers.

In brief, activities that require the interpretation of statutes, administrative rules, community association governing documents or rules of civil procedure constitute the practice of law, as does the drafting of documents (even form documents) which require a legal description of the property or which determine or establish legal rights.

While the both the 1996 and 2015 decisions provide a good deal of clarification, there are still numerous activities that may or may not constitute the unlicensed practice of law.  When faced with those uncertain situations, ROC board members and managers should contact the association attorney.

I'm beginning to put together the schedule for our 2015-2016 ROC seminars--if you have topics you'd like us to cover, please forward them to me.

I hope you're enjoying your summer!


Are You Ready for E-voting?

 Effective July 1, 2015, voting and the conduct of elections in resident owned communities in Florida may be done electronically.  There are numerous conditions that must be met before a unit owner can vote electronically--not the least of which is that the unit or parcel owner must consent to that electronic voting.

Earlier this year, Florida's legislators created three new statutes to provide for the use of an "Internet based online voting system":

  • Florida Statute Section 718.128 for condominium associations
  • Florida Statute Section 719.129 for cooperative associations 
  • Florida Statute Section 720.317 for mandatory homeowners' associations

In addition, existing statutes were revised to allow electronic transmission of notices of most board meetings, membership meetings, and committee meetings even if the association's bylaws don't expressly allow for electronic transmission of these notices.

Moreover, Chapter 617 of the Florida Statutes, which governs not-for-profit corporations, was amended to provide that a copy, facsimile transmission, or other "reliable reproduction" of an original proxy can be used instead of the original proxy as long as that copy, fax, or reproduction is a "complete reproduction" of the original proxy--even if the association's bylaws or articles of incorporation prohibit its use.

As you can imagine, there are more questions than answers raised by these new laws allowing for "online voting".   I have a feeling that community association attorneys (as well as managers and board members) are going to have a very interesting "election season".

Flags, Ducks and Purchase Offers

I wanted to share two recent news stories and discuss a question raised in an email sent to my blog over the weekend.

It's always nice to read good things about the members of our ROC family and the efforts of some of the residents at Country Club Estates in Venice to encourage the display of the "stars and stripes" in that community are detailed in last Saturday's Herald Tribune article, which was certainly a very timely recognition of Flag Day.

Several years ago, I posted an entry in my blog about the problems in ROC's  caused by wild animals, including Muscovy Ducks.  As you can see from this Tampa Bay Times report, that issue has clearly not been resolved.

Finally, I received an email from  members of a resident owned manufactured housing cooperative located in west central Florida.  A third party investor had made an offer to purchase this community and the residents were very concerned that their "slice of paradise" would be sold to this investor (or some other prospective purchaser) without the unit owners' approval.  

Over the years, we've helped residents throughout the state purchase and convert mobile home parks to resident owned manufactured housing cooperatives.  Our firm also assists private investors selling or buying manufactured housing or RV communities and we have occasionally helped investors purchase resident-owned cooperatives and return those communities to rental mobile home park status.

When a resident owned community receives an offer from a private investor, the members of the ROC should remember that the provisions of the documents that govern that community--such as the association's bylaws and the master form proprietary lease or occupancy agreement--and certain provisions of both Chapters 719 and 723 of the Florida Statutes--will control what's required in order for any such purchase to occur.  In most cases, a substantial majority of the members will have to approve any such sale at a properly noticed meeting of the unit owners.

When an offer to purchase is received by a ROC board and the board wishes to explore that offer, the board should consult with the association's attorney through every step of the process.


Florida Tightens Up its Service Animal Laws

A much needed update to Florida's laws governing service animals was signed into law yesterday (June 11, 2015).

Here's the link to the full text of House Bill 71 that shows the numerous revisions to Florida Statute Section 413.08.

It appears that Florida's lawmakers are taking some positive steps to combat what I've referred to as the "service dog scam":

  • The definition of "service animal" in F.S. 413(2)(d) is revised and now more in line with the definition found in the Americans with Disabilities Act.  In particular, a "service animal" in Florida is now limited to a dog or a miniature horse, and a "service animal" must perform a specific task--merely serving as a "crime-deterrent" or providing emotional support, well-being, comfort and support is not sufficient for a dog or miniature horse to qualify as a "service animal".
  • The service animal must be under control of its handler and in most cases must have a harness, leash, or other tether.
  • Newly created F.S. 413.08(9) provides that a person "who knowingly and willfully misrepresents herself or himself, through conduct or verbal or written notice, as using a service animal and being qualified to use a service animal or as a trainer of a service animal commits a misdemeanor of the second degree" and must perform thirty hours of community service for an organization that serves individuals with disabilities, or for another entity or organization chosen by the sentencing court.  The offender has six months to complete that community service.

ROC board members and managers should note that there is a new provision--F.S. Section 413.08(6)(c) that specifies that the rights and responsibilities of housing providers and individuals with disabilities in regards to "assistance animals" are not limited by the provisions of the laws regarding "service animals".

These revisions to Florida Statute Section 413.08 take effect on July 1, 2015 and represent a small but important first step in dealing with the "service dog scam".

I'll look forward to your comments and questions about these changes.


Florida's Legislators Update ROC Fining Committees

 Florida's lawmakers "tweaked" the provisions relating to ROC "fining committees" during the recent legislative session in Tallahassee.  In summary, condominium associations, cooperative associations, and mandatory homeowners' associations now follow a similar process:

  • The revisions now clarify that it is the "board of administration" (which most ROC's refer to as the Board of Directors) that imposes the fine or suspension
  • However, the fine or suspension levied by the Board may not be imposed unless the Board first provides at least 14 days' written notice and an opportunity for a hearing to the unit or parcel owner (and, if applicable, the occupant, licensee or invitee of the unit or parcel)
  • This hearing must be held before a "fining committee"  of unit owners (or association members in mandatory HOA's).  The legislative revisions to the cooperative laws added a provision that prohibits board members and persons residing in the home of a board member from serving on this fining committee.  This restriction has existed for "fining committees" in condominium associations for a number of years.  The restrictions on persons who can comprise the fining committee in a mandatory homeowners' association are somewhat more expansive.
  • Finally, there is a new statement in the provisions governing fining committees in all three types of associations that the role of the fining committee "is limited to determining whether to confirm or reject the fine or suspension levied by the board".

I'm posting a link to HB 791 for those of my blog followers who wish to review these changes and well as others that I will be discussing in future entries.  

All of these revisions become effective in just a few weeks--on July 1, 2015.

I hope all of you are enjoying the "off season" whether you are up North or remaining in the Sunshine State for the summer.



Resolution for 2015

 Welcome to 2015 and my best wishes to all of my blog's followers for a very happy and healthy new year.

2014 was an extremely busy year and I was unable to post entries here as often as in previous years.  I'm hereby resolving to do better in 2015. 

We'll start 2015 with a reminder that all community associations are not created alike.  A board member in one of the cooperatives we work with asked me last week whether a husband and wife (who together own only one unit in the community) could both run for the board of directors.   Chapter 718 of the Florida Statutes, which governs condominium associations, prohibits co-owners of a unit from serving on the board of directors at the same time unless:

  • the condominium association has less than ten units,
  • the condominium association includes timeshare units or timeshare interests, or
  • there are not enough eligible candidates to fill the vacancies on the board at the time of the vacancy

Those provisions in Chapter 718 are not found in either Chapter 719 or Chapter 720, which governs mandatory homeowners associations.  This means that, in a cooperative association or mandatory homeowners association, if there are five named owners of the unit or parcel, assuming that each of those five named owners would otherwise be eligible to serve on the board, all five of them could run and all five could serve if they were elected--even if they only owned that one unit or parcel in the community.

This is just one example of why community association board members, managers (and their attorneys) cannot simply assume that "one size fits all".  At least for the time being. when it comes to condominiums, cooperatives, and subdivisions in Florida, nothing could be further from the truth!

I'm looking forward to speaking at the EPROC meeting this Friday at Emerald Pointe in Zephyrhills and hope to see many of our East Pasco County friends at this event!