Florida ROC : Florida Mobile Home & RV Lawyer & Attorney : Scott Gordon : Lutz Bobo Telfair Eastman Gabel & Lee Law Firm : FL Condo & Homeowners Associations

 I just read an article at the CNN website about the Americans With Disabilities Act, which was signed into law by President George H. W. Bush on July 26, 1990.   That article contained a link to a story that personalizes the importance of the ADA and its intent to insure that all citizens have the ability to function to their fullest capacities regardless of their particular physical, mental, or emotional challenges.

In my last entry, I summarized the decision of an Administrative Law Judge that found a landlord liable for more than $50,000 in civil damages and penalties because the landlord was held to have retaliated against a single mother who filed a Fair Housing complaint.

As I've mentioned before, our nation's fair housing laws and the ADA are rooted in the civil rights legislation of the 1960's and all managers, board members and residents in ROCs should remember that any attempts to restrict the rights that have been granted by our federal and state legislatures and courts to persons that fall within any of these "protected classes" may subject the community to consequences that are both severe and damaging.

Just something to consider as we observe the 20th anniversary of the ADA.

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Several of the resident-owned communities we work with have had the great displeasure of dealing with complaints filed by residents under the Fair Housing Act.   Most of these complaints are without merit and are eventually resolved in favor of the community.  Quite often, the resident filing the complaint is simply trying to delay an eviction action, has a personal vendetta against the manager or one or more board members, or is attempting to prevent the association from exercising its rights to determine whether a "reasonable accommodation"should be granted to the resident.   

It's not a stretch to say that any resident that files a Fair Housing complaint is often regarded by many in the community as a major aggravation that is costing the association money and creating conflict and misery for his or her neighbors.   Occasionally, other residents in the community (and even a few board members) will strongly suggest that the ROC would be better off if the association simply filed an action to evict the complaining resident.

As most of you already know, such a course of action is a recipe for certain disaster.  The latest example can be found in a press release issued by the Department of Housing and Urban Development on July 16, 2010.   

The press release summarized the decision of a HUD Administrative Law Judge who ordered an Iowa landlord to pay $52,150 in damages and civil penalties for retaliating against a single mother of three by threatening to evict her because she filed a housing discrimination complaint.

The brief facts are as follows:

• The mother's fair housing complaint alleged that the landlord refused to rent her a three-bedroom apartment and unjustly charged her a higher security deposit because of her sex
• HUD found no evidence of sex discrimination
• However, HUD nonetheless charged the landlord and the landlord's management company with unlawfully retaliating against the tenant by terminating her lease and attempting to evict her because she filed the fair housing complaint

It's important to note here that it was the action of retaliating against the renter that formed the basis of this judgment--even in the absence of any finding of discrimination.

Please keep this case in mind the next time one of your residents confronts you and demands that the association evict the "gadfly" that's filed a fair housing complaint.  The last time I checked, $52,000 was still a lot of money--whether in Iowa or in sunny Florida.

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It appears that, effective July 1, 2010, members and employees of condominium associations and mandatory homeowners' associations in Florida will be entitled to some additional privacy protections thanks to Senate Bill 1196. 

The Florida legislature, through Senate Bill 1196, has revised Florida Statute Sections 718.111(12) and 720.303(5) to provide that the following records--in addition to those already protected--shall not be accessible to condominium unit owners or subdivision parcel owners:

• Personnel records of association employees, including, but not limited to, disciplinary, payroll, health, and insurance records
• Social security numbers, driver's license numbers, credit card numbers, electronic mailing addresses, telephone numbers, emergency contact information, any addresses of a unit or parcel owner other than as provided to fulfill the association's notice requirements, and other personal identifying information of any person, excluding the person's name, unit or parcel designation, mailing address, and property address
• Any electronic security measure that is used by the association to safeguard data, including passwords
• The software and operating system used by the association which allows manipulation of data, even if the unit or parcel owner owns a copy of the same software used by the association.

However, for some reason, Florida Statute Section 719.104(2), which governs the official records of a cooperative association, was not amended by Senate Bill 1196.  

Members and employees of cooperatives thus will now have less privacy protection than their counterparts in condominiums and subdivisions.

I assume that this was not intended by Florida's legislators and that a "glitch bill" will be introduced at the next session in Tallahassee to ensure members and employees in all categories of resident owned communities are given equal privacy protection. 

In the meantime, members of cooperatives might want to bring this to the attention of their state legislators.

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Governor Crist signed Senate Bill 1196 into law last week and I'll be posting several entries about the amendments to Florida's statutes affecting condominiums, cooperatives, and mandatory homeowners' associations in the coming weeks. 

I'd like to first mention a provision in Senate Bill 1196 that corrects a "glitch" in the statutes governing cooperative associations.

SB 1196 amends Florida Statute Section 719.106(1)(d)6 to provide that, unless a cooperative association's bylaws provide otherwise, a board member appointed or elected to fill a vacancy on the board that occurs before the expiration of the term serves for the full remaining term of the seat being filled.   Although the Florida Administrative Code Section that expanded on F.S. 719.106(1)(d) specifically provides for a vacant seat being filled for the full remaining term, because the statute itself was silent on the issue, there was some uncertainty as to whether the vacancy was filled for the full term or only until the next annual meeting.   This amendment removes any potential inconsistency between condominium associations and cooperative associations on the issue of filling a vacant position on the board that occurs before the expiration of the term.

SB 1196 further amends the statutes governing retrofitting for fire sprinkler systems in both condominiums and cooperatives by prohibiting local authorities from requiring completion of fire sprinkler system retrofitting before the end of 2019.   This is a five year extension from the date provided for prior to this amendment.   The association membership still has the right to "opt out" of retrofitting.

SB 1196 also adds several categories of information that is not to be made available to members or parcel owners in mandatory homeowners associations.

In my next entry, I'll discuss some changes found in SB 1196 that are intended to help ROC boards and managers deal with our foreclosure crisis.

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I'm posting two very different articles for the education and enjoyment of my blog readers:

• A horror story from a recent edition of the Fort Lauderdale Sun-Sentinel about a ROC board's disastrous decision to forego insurance coverage.
• A much lighter report from the May 16, 2010 edition of the St.Petersburg Times about the "Airstream Ranch" now featured along I-4 in Hillsborough County.

I hope you'll find these stories interesting and informative.  

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Most ROC managers and board members know that Florida statutes governing condominium associations and cooperative associations allow directors to attend a board meeting by phone.  

While the statutes governing mandatory homeowners associations don't provide for an HOA board member to appear by phone at a board meeting, if the HOA is a not-for-profit corporation (and most are), the provisions of Florida Statute Section 617.0820(4) may apply and allow HOA directors to participate by "any means of communication by which all directors participating may simultaneously hear each other during the meeting".

The statutory provisions governing condominium and cooperative associations focus on the ability the directors not attending the meeting in person to hear and be heard by the board members attending in person as well as the unit owners present at the board meeting.  Both statutes (Section 718.112(2)(b)5 for condominium associations and 719.106(1)(b)5 for cooperative associations), in contrast to Section 617.0820(4), specifically refer to a "telephone conference" and the use of a "telephone speaker".

But what about Skype?

Many of my blog readers may know that Skype is a free computer program that allows its users to speak at no expense with other Skype users through their computers via the internet.  

One of the manufactured housing cooperatives we represent was thinking about using Skype as a substitute for phone conference calls for directors who could not appear in person for board meetings.   At the time, I hadn't sampled Skype and felt that the process might be too cumbersome and was concerned about statute's specific reference to the use of a telephone.

That was several months ago--before I retired the old but trusty laptop that my younger daughter had handed down to me and purchased a new laptop with a built-in web camera feature.   I thus had an excuse to try Skype and was very impressed with the audio and visual quality of the connection (no doubt to the amusement and mild annoyance of my daughters and one of my nieces who were the first three recipients of my Skype "test run" and who of course have used Skype for several years).

I visited Skype's website and it appears that Skype users can easily arrange for conference calls that will allow everyone on the call to hear and be heard.   I can certainly picture board meetings where there will be a laptop (rather than a telephone speaker) in the center of the table at the ROC clubhouse where the meeting is being held--all at no cost to the association other than the ongoing monthly charge for internet service and, if a member's laptop is not on that clubhouse table, the one-time charge for the association to purchase a laptop.

While using Skype rather than a telephone speaker may not technically constitute a "telephone conference," I would certainly hope that as long as all board members and unit owners can hear and be heard, a board meeting where some directors attend by Skype would meet the statutory requirements.

I'm can't wait for my next chat with that forward thinking ROC.

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One of the resident-owned cooperatives we work with recently contacted me with a very interesting question.   This ROC wanted to create a "community garden" on an unused common area and the manager wanted my opinion as to whether the board could authorize this "community garden" or whether a vote of the members would be required.

As many of my blog readers know, the answer to this question turns on whether creating a "community garden" is a "material alteration" of the common areas.  The applicable section of the Florida Statutes for cooperatives states that, unless other procedures are included in the community's governing documents or such action is expressly prohibited in the articles of incorporation or bylaws governing the community, a ROC may not "materially alter" the common areas of the community unless the action is approved by two-thirds of the total voting interests in the community.   The applicable section of the Florida Statutes governing condominiums has similar language but requires (in the absence of any language in the condominium documents)  the approval of 75% of the total voting interests.

So is this community's planned "community garden" a "material alteration"? 

While there is no clear-cut rule determining exactly what is and what isn't a "material alteration," there are a few important factors to consider:

• The common area in question is currently unused
• No structure would be build on this common area
• The nature of the common area would not be substantially changed

Based on these factors, my "gut feeling" is that this "community garden" would not constitute a "material alteration" and the board could authorize this usage without membership approval.

My colleague from our Tallahassee office, Karl Scheuerman, provided me with a copy of a 2003 arbitration decision from Florida's Department of Business and Professional Regulation, Tilney v. Association of the Fountains, Inc., which determined that a condominium association board's landscaping project over a portion of the common elements did not constitute a "material alteration".  The arbitrator reviewed and discussed several prior decisions from Florida's appeals courts and DBPR arbitrators in the process of making his determination.

While the Tilney decision provided me with an additional reason to advise that the "community garden" was not a "material alteration," I suggested to the ROC manager that the best and safest course of action--both legally and politically--might be to obtain membership approval. 

After all, why fight a battle that could have been avoided in the first place--especially if the board knows that a substantial majority of the membership is in favor of the planned improvement--even if it's not a "material alteration"?

I'll be finishing a very busy season of presentations on Tuesday morning, April 20, at the Mid-Florida ROC meeting at Country Club Manor in Eustis.  We've had great attendance and fantastic responses at all of our recent seminars and I want to thank all of our hosts for the hospitality and our attendees for their participation.  

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Board members and managers in resident-owned condominiums and cooperatives may recall that tucked away in Chapters 718 and 719 of the Florida Statutes are several provisions that require associations to "retrofit" their "common areas" with handrails or guardrails and fire sprinkler systems or other "engineered life safety" systems.   The statutes provide that these retrofitting requirements may be waived by the members of associations where the common areas are not in a "high rise building," which is defined as "a building that is greater than 75 feet in height where the building height is measured from the lowest level of fire department access to the floor of the highest occupiable story".

ROC board members should note that even if a community does not have a "high-rise building" the members must still waive the retrofitting requirements.   The voting procedures differ for the waiver of the two different types of retrofitting:

• Florida Statutes Sections 719.1055(5) and 718.112(2)(l) allow for limited proxies, ballots personally cast at a duly called meeting of the members, or a member's written consent to be used in a vote to waive the requirement to retrofit a fire sprinkler system or other engineered life safety system.
• However, according to Florida Statutes Sections 719.1055(6) and 718.1085(1), neither limited nor general proxies can be used for a vote to forego retrofitting for handrails or guardrails.  This vote must be made in person at a duly called membership meeting or by execution of a written consent by that member.

The decisions to waive or forego these retrofitting requirements become effective upon the recording of a certificate attesting to such vote in the county where the ROC is located.  The association also must notify the members of the decision to forego retrofitting after the vote--within 30 days after the vote to waive the sprinkler system retrofitting and within 20 days after the vote to forego the handrail retrofitting.

Since the statutes provide that the local authorities that would have jurisdiction over the community buildings cannot require retrofitting of the common areas until the end of 2014, ROCs still have a few years to plan and schedule the membership meeting where these votes will occur.  

Just something to keep in mind during the "off season".  

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I've been conducting "mini board orientations" at our current series of ROC seminars at Harbor Oaks in Fruitland Park, Japanese Gardens in Venice, and Golf Lakes in Bradenton.  In my presentation, I provide a list of ten suggestions to help board members deal with the issues that arise in resident owned communities.

One of those suggestions is that board members should know and understand the costs that may be involved in actions that they take to enforce community rules.  There is always someone in a resident owned community (quite often a board member) that insists that the "principle" of the situation requires that the board take a "hard line" approach.

I'll be highlighting an article from last Friday's Sarasota Herald Tribune when I conduct my next "mini board orientation during  our seminar at Enchanting Shores in Naples on the morning of April 1.  The article describes a battle that's being fought between the resident of the Summerfield community in Lakewood Ranch and the homeowners association that has fined her over $4000 because she has displayed too many decorations on her lawn. 

After you've read this article, you'll probably understand why the outline for the portion of my "mini board orientation" that deals with these types of situations is titled "Principle Costs HOW MUCH?"

I'll try to keep you advised of further developments in this situation within the Summerfield community.

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A column in a recent edition of the Sarasota Herald Tribune highlighted the problems that all too often arise in communities when boards and managers fail to enforce a community rule on a consistent basis.   When a particular rule is enforced only against some of the residents in the community (with no legitimate reason for the rule's "selective enforcement"), it becomes difficult, if not impossible for that particular rule to withstand a legal challenge from a resident that feels he or she is being singled out for this "selective enforcement". 

I discussed this problem in my "mini board orientation" at our ROC seminars last week at Japanese Gardens in Venice and this week at Harbor Oaks in Fruitland Park.  Thanks to both of these communities for being gracious hosts and to all of the attendees.  I'll be presenting the same "mini board orientation" March 23 at Golf Lakes in Bradenton and on April 1 at Enchanting Shores in Naples.  Please contact either Karen Midlam (kmidlam@lutzbobo.com) or Kathy Sawdo (ksawdo@lutzbobo.com) if you haven't already rsvp'd and would like to attend one of those seminars.  These seminars begin at 10 a.m. and end by 12:30.  There's no charge to attend and refreshments are served.

I also wanted to note that last week a 96 year old man in Venice was attacked by a rabid otter while taking his early morning walk.   Fortunately, the man was rescued by several onlookers but suffered some fairly serious cuts and bites and both he and one of his rescuers will require a series of rabies shots.  Every community seems to have at least one resident that takes great pleasure in feeding the raccoons, birds, alligators, etc. that share Florida with us.   These residents need to be gently but firmly reminded that the "wild" in "wildlife" means just that, and that if the community has rules against feeding these wild animals those rules will be enforced--in a consistent manner against all residents in the community.

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I always enjoy reading Richard White's column in the Florida Community Association Journal.  While there are several attorneys that contribute regularly to this publication, Mr. White presents the manager's perspective on questions and issues arising in resident owned communities.  

His column in the January 2010 issue of the Journal included an answer to a reader who asked whether Florida Statutes, an association's bylaws, or Robert's Rules of Order prohibited a ROC President from making a motion.   I appreciated Mr. White's  response as I've answered the same question in substantially the same way on many occasions.

Here's a summary of what Mr. White (and I) have to say on this issue:

• Board members are elected by the general membership and they answer to the general membership
• Motions and resolutions must be voted on by the directors as they (the directors) are responsible to the general membership
• Officers are elected by directors and thus have duties to these directors
• In a board meeting, the primary responsibility of a person who is both an officer and a board member is to fulfill his or her obligation to the general membership as a board member, and this requires that each board member have the right and responsibility to make motions and to vote.
• Accordingly, not only can the President make motions, the President must vote on any motion that comes before the board.

Mr. White also states (and I agree wholeheartedly) that Robert's Rules of Order is "the most misunderstood guide as a directive" in ROC board and membership meetings.  Many residents don't realize that there is a specific section in Robert's that covers procedures in small boards (where there are not more than a dozen board members).  As Mr. White notes, nowhere in Robert's is there any prohibition against a President (or any other officer) making a motion or voting.

As I've mentioned in other entries to this blog and on many occasions during our seminars, board members should only abstain in those very rare occasions when a legitimate conflict of interest   exists.

The general members in a resident owned community elect directors and expect  them to vote on all issues coming before the board.  Many thanks to Richard White for highlighting this in his column.

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The last of our second series of seminars for the season is set for February 24th at Caribbean Isles in Apollo Beach.  We'll be starting our last set of presentations less than two weeks from now.

Here are the dates and locations of these upcoming seminars:

• Wednesday, March 3, at Japanese Gardens in Venice
• Tuesday, March 9, at Harbor Oaks in Fruitland Park in Lake County
• Tuesday, March 23, at Golf Lakes in Bradenton
• Thursday, April 1, at Enchanting Shores in Naples 

We'll be covering a number of very interesting topics, including a mini-orientation for ROC board members and a discussion of financial opportunities for ROCs in this challenging economy.  Current cases and pending legislation will be covered, including any additional information we've gathered on House Bill 419 and companion Senate Bill 864  that appear to be on the agenda of Florida's legislature during its upcoming session.  As always, we'll try to provide ample time for a general "question and answer" session.   The seminars will be begin at 10 a.m. and we should be finished by 12:30 pm at the latest.

Refreshments will be served, and there's no charge to attend.  If members of your community would like to attend any of these seminars, please rsvp by emailing either Kathy Sawdo at ksawdo@lutzbobo.com or Karen Midlam at kmidlam@lutzbobo.com.  Just let them know which seminar you'd like to attend, the name of your community and the number of residents from your community that will be attending, and whether you'll need directions to the host community.   We like to give each of our host communities a "head count" of attendees a few days prior to the seminar that community is hosting so, if at all possible, please rsvp at least a few days before the event you're planning to attend.

We hope to see you at one of these events.

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I just returned from a brief trip to Memphis, Tennessee and visited the National Civil Rights Museum, which is located at the site of the murder of the Reverend Dr. Martin Luther King, Jr.  The museum has incorporated much of the Lorraine Hotel (including the room in which Dr. King stayed and the balcony outside that room where he was killed) as well as the apartment across the street from the hotel where James Earl Ray aimed and fired from a bathroom window and took Dr. King's life.   I recall the exact moment when I learned of Dr. King's death and to be able to view the site of his assassination in an "up close and personal" manner was an extremely powerful experience for me.   I highly recommend a visit to the museum if you are in the Memphis area and suggest that you view the short movie at the museum called "The Witness" before beginning to tour the exhibits.

As I made my way through the museum, I was reminded that many of the freedoms we take for granted today are the result of great sacrifices and courageous efforts by Americans of all colors and beliefs.   I couldn't help but marvel that less than fifty years ago, Dr. King was gunned down simply because many of his fellow countrymen could not accept the fact that all Americans were entitled to certain basic rights.   The fact that many of the injustices that Dr. King sought to overcome have been remedied speaks volumes to his legacy and to the laws that our federal and local legislators have enacted during the past five decades.

My visit to the museum reminded me about the direct connection between the Civil Rights laws and the Fair Housing and Disability laws that often create divisive problems for board members and other residents in the communities we work with.   Those Fair Housing and Disability laws built upon the earlier Civil Rights laws and extend rights of equality to which all Americans are entitled.  The underlying philosophy of all of these laws is simply that no American should be deprived of certain opportunities, whether in employment, or voting, or obtaining housing, simply because of his or her color or religion or disability.   Unless our legislators carve out an exception (such as the Housing for Older Persons Act), it's that underlying philosophy that should guide ROC board members.

Some forty-two years after Dr. King's death, it's an important lesson for all of us to remember.

Thanks to our friends at Francis I in Sebring for hosting last week's well-attended seminar.  We'll be at Windward Isles in Sarasota and Marco Shores in Naples this week and at Caribbean Isles in Apollo Beach during the last week in February.  If you'd like to attend one of these free seminars and haven't yet rsvp'd, please contact either Karen Midlam at kmidlam@lutzbobo.com or Kathy Sawdo at ksawdo@lutzbobo.com.  I hope to see you at one of these events.

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ROC managers, board members and the professionals that advise them quite often long for the "good old days" when the Florida Statutes governing condominium associations (Chapter 718) and cooperative associations (Chapter 719) were almost identical in provisions concerning elections, eligibility to run for the board, and waivers of financial reporting requirements. 

Those days are, for better or for worse, long gone.   Here's a quick sampling of the just a few of the important differences that now exist between the statutes governing cooperatives and condominiums:

1. Terms of board members:   F.S. Section 718.112(1)(d) now provides that the terms of all members of the board of directors of a condominium association expire at the annual meeting unless a majority of the unit owners approve a provision in the bylaws that permits staggered terms of no more than two years.   F.S.  Section 719.106(1)(d) imposes no such term limitation on board members in cooperative associations.
2. Eligibility to serve as a board member:   F.S. 718.112(1)(d) also prohibits co-owners of a unit in condominium associations with more than 10 units from serving on the board at the same time and also prohibits persons who are more than 90 days delinquent in payments of any fees or assessments due to the association, and many persons convicted of a felony from such service.  There is also a rather curious requirement that any candidate for the board of a condominium association sign a form certifying that "he or she has read and understands, to the best of his or her ability, the governing documents of the association" as well as the provisions of Chapter 718 and any " applicable rules".   Any member of a cooperative association that wishes to run for the board of directors will find that Chapter 719 does not contain any of these eligibility requirements or prohibitions if he or she wishes to serve his or her community.
3. Financial reporting requirements:  F.S. 719.104(4)(b) allows cooperative associations that are larger than 50 units  to waive the requirement that the association's financial statements compiled, reviewed or audited.   This waiver must be done annually by the vote of a majority of the voting interests present, in person or by proxy, at a duly called membership meeting.   F.S. 718.111(13) now prohibits a condominium association's membership from waiving these financial reporting requirements for more than 3 consecutive years.

I've just highlighted a few of the many differences that now exist between Chapters 718 and 719.   We haven't even touched on Chapter 720 HOA's or those "hybrid" ROCs that may or may not be governed exclusively by the provisions of Chapter 617, Florida's statutes for not-for-profit corporations.   With the next session of the Florida legislature just a few months away, we'll just have to wait and see if there's any hope of returning to those "good old days".

Stay tuned.

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What can the directors or other members of a ROC do when the President refuses a request to bring an item before the board for consideration?

There are a number of factors that should be considered in answering this question:

• Traditionally, the President (or the board's chairperson) has been given the task of setting the agenda for meetings of the directors.  However, it's also customary that the President consult with the other directors when setting that agenda.
• There's certainly nothing wrong with allowing the President and the other members of the board to exercise a reasonable amount of discretion in setting the agenda.   Clearly, no purpose is served by allowing an issue that has already been decided by the board to have that issue placed on the agenda simply because a board member or other resident disagrees with the board's decision.
• However, the continual refusal of a President to place an item on the board meeting agenda may be a symptom of dangerous divisions within the board and the entire community.   When a ROC board member complains to me that his or her President will not place an item on the board meeting agenda, that's a warning sign that requires my contacting the ROC manager to determine the reasons for the refusal to place the item on the agenda.    Quite often, I'll learn from the community's manager that there are legitimate reasons for the President's position and at the same time will discover that personality conflicts or other issues are preventing the board from effectively governing the community.

If the President's refusal to place an item on the agenda is not justified, board members should review the association's bylaws.   The board members themselves usually appoint the association's officers, including the President, and a President that refuses to listen to a majority of his or her board members runs the risk of being removed from his office by his or her fellow board members.   While he or she would remain on the board, that removed President would no longer be able to unilaterally control the agenda.

I'll be posting the dates and locations of our seminars for February and March in my next blog entry.   We've got some exciting topics to cover and hope you'll be able to attend one of them.

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Can unit owners in resident-owned communities discover what the association is paying its employees, including the manager? 

We are asked this question frequently each year, especially when the association is in the process of preparing its annual budget.   Obviously, the association's employees would prefer that information about the compensation they are receiving be kept private and confidential and many board members and managers are uncomfortable disclosing this information to residents in the community.  Directors are concerned--quite often, with justification--that the residents in the community do not understand that a salary paid to a ROC employee in Ohio twenty years ago would not be a competitive salary in a community in Florida in 2009.

However, Florida's statutes governing condominium associations, cooperative associations, and mandatory homeowners associations make it clear that information about the compensation paid to an employee and the other benefits that an employee receives falls within the "official records" of the association.   Any association member is entitled to inspect and copy this information.

I have a few suggestions to help board members and managers maintain some amount of privacy for the association's employees without violating Florida statutes:

1. Florida's statutes require that an association member's request to inspect or copy official members be made in writing and that the association has a number of days to respond to that request.  This allows a manager confronted at the office by a unit owner demanding salary information to request that the unit owner submit his request in writing prior to allowing that unit owner access to that information.
2. The requirement that requests to inspect official records be submitted in writing allows the President or Chairperson to advise any member insisting upon disclosure of an employee's salary during a meeting of the board or membership that any unit owner  wishing to obtain this information is free to do so by submitting a written request as provided for by Florida's statutes.
3. It's also very helpful if the association's board of directors can assure its members that its employees' wages, salaries, and benefits are in line with those paid to employees in comparable communities in the area.  The board or manager can often obtain this information from its accountant or through networking with neighboring communities.   Local chapters of the Community Associations Institute and regional groups such as Mid-Florida ROC or SWFLROC  would provide an association's board members the opportunity to gather this information on an informal basis.

Finally, any member that does inspect or copy information about an employee's compensation and benefits should be gently but firmly reminded that any employee of the association deserves the courtesy of not having his or her salary broadcast throughout the community indiscriminately.   No unit owner would enjoy having his financial information freely discussed at the pool or in the clubhouse and any member that obtains an employee's salary information channels should respect that employee's privacy. 

In addition, ROC members living in communities where not all of the residents are members of the association (such as resident owned mobile home cooperatives where some home owners are not members of the cooperative) should keep in mind that a unit owner who divulges an employee's salary may in fact be providing that information to non-member homeowners who are not entitled to that information and who may try to use that information to damage the  association--for example, by challenging an increase in the annual rent to be paid by the non-member mobile home owners and citing the salary information that was intentionally or unintentionally disclosed to that non-member.

Clearly, every member of the association owes both the association's employees and all of the other residents in the community a high degree of discretion when that member obtains information about the compensation and benefits paid to association employees.

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Those of you that attended our recent ROC seminars at the Molokai community in Leesburg and Sandalwood Park in Venice know that the Federal Trade Commission has delayed the implementation of the "Red Flag" Identity Protection Rules until June 1, 2010.  I briefly summarized my understanding of these rules and how they may impact resident owned communities at those two seminars and will present the same summary at our upcoming seminars at Old Bridge Village in Fort Myers and Westwinds Village in Bradenton.

The Community Associations Institute recently published an article that may help ROC managers and board members determine whether their association will have to comply with the "Red Flag" rules and, if so, the type of identity protection program the association will have to adopt and maintain.

A number of factors will have to be considered, including:

• Whether the association is a "creditor" because it accepts installment payments of maintenance fees or assessments (while this does not seem to include rent payments, a cooperative association that finances residents' purchases of membership shares would appear to be a "creditor")
• Whether there is a risk of identity theft as measured by factors, including the volume of identity-related information that is received by the association and the number of association employees and board members that review that information

The CAI's article provides an outline of a basic identity protection program that associations might want to consider.   The association should consult with its attorney to help prepare and implement the community's identity protection plan.

A great deal of uncertainty still surrounds the "Red Flag" rules and I would not be surprised if the FTC decides to delay the implementation of these rules again as the June 1 deadline approaches.  However, managers and board members should strive to protect the privacy of every resident in their communities.  Please remember that the association's attorney should be consulted whenever a question involving a request to provide a resident's "private" information arises as the provisions of the Florida Statutes governing condominium associations, cooperative associations, and homeowners' associations may require the production of information that a resident, board member, or manager considers to be "private".

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The managers and board members in the communities we work with have been faced with some rather interesting situations during the past few months.   Here's a sampling--see if you can guess what they have in common:

• A ROC manager receives a frantic call from one of the residents in her community about  another resident who wandering up and down one of the streets in the community waving a machete.   
• A board member wants to stop cars that she feels are speeding in her community and tell the drivers that they are violating the rules and regulations in her community.
• Another community is about to begin a substantial renovation of its clubhouse and one of its board members would like to be appointed as the "project supervisor" to oversee the general contractor and all of the work.
• Several board members in another community are convinced that a resident requesting to have a pet reside with her as a "reasonable accommodation" for her disability is not disabled and have stated that they will vote against granting the resident's request even if she provides the board with a statement from her treating physician verifying the disability and the need for the accommodation.

In each of these situations, ROC managers or Board members are being asked to or are volunteering to step well outside the scope of their  "job descriptions".   Neither  managers nor board members have the training nor should they attempt to disarm someone waving a machete, as that situation clearly calls for the local law enforcement authorities.   Likewise, even if a board member can be certain that someone is exceeding the speed limit in the community, the  appropriate action is to positively identify the vehicle and report the incident to the manager or, in certain circumstances, the police or sheriff's department.

While it's common for the community manager and one or more residents that have been appointed by the board to serve in an advisory capacity or as a "go between" with the general contractor and other professionals involved in a major community project, even if a board member has the qualifications (including any required licenses) to supervise the project, why would the association want to put itself in the position of being a defendant in a lawsuit filed as a result of damage or injury that occurs as a result of defective workmanship?    I have no doubt that the association would be sued on the grounds that one of its board members was supervising the project but I do have doubts that the association's insurance would protect the association in this situation--precisely because the association allowed its board member to act outside of a board member's "job description".  Also, what if the association is unhappy with the board member's performance as the supervisor--how comfortable will be other board members and the other residents in the community be if the board has to terminate their fellow board member's employment?

Finally, numerous court decisions involving Fair Housing Laws make it very clear that allowing board members to "play doctor" and substitute their judgment for that of trained health care professionals is a prescription for disaster.  While the association's board is entitled to request documentation to establish the basis for a resident's request for a "reasonable accommodation," once that documentation has been presented, a failure to make that "reasonable accommodation" may have serious and adverse financial implications for the community. 

ROC managers and board members have more than enough work within their "job descriptions" to keep them busy.   The community that allows or encourages its manager or board members to step outside of those "job descriptions" does so at its own peril.

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Yesterday's "Sarasota Herald Tribune" featured a column by Tom Lyons about a dispute between the board of a condominium association and one of its residents.   As I read the article (which was headlined "Condo flag fight needs a little common sense") I wondered whether this association's directors had considered the negative publicity resulting from their decision to require the resident to remove five or six small flags that she had arranged in a circle around a tree located on the common area outside of her unit on the Sunday before Veterans Day.   The question as to whether the association was correctly interpreting Florida Statute Section 718.113 and its own governing documents seemed rather unimportant when compared with the desire of this resident to demonstrate her patriotism during the week of Veterans' Day--especially since, according to Mr. Lyons' column, the resident was the mother to two sons and daughters-in-law who were currently serving in the Navy and had lost two friends who died while serving in Vietnam.

Later that morning I spoke with a board member from one of the ROCs we represent.     She had just received a rather unique request from a couple that wanted to spend a month in the  recreational vehicle park operated by the association.   The rules governing the RV park and the rest of the community prohibited pets and the couple was aware of this because they had friends that lived in the park.   This couple trained guide dogs and they wanted to know whether the Board of Directors would make an exception to the "no pet" rules and allow them to bring the dog they were currently training with them during their stay.   While there were certainly other nearby locations where the couple could stay with the dog, both they and their friends hoped that the Board could grant their request.  

As we discussed this situation, it was clear that this board member had already read Florida Statute Section 413.08 which gives persons with disabilities rights to be accompanied by a "service animal" in "all areas of a pubic accommodation" that "the public" would normally be permitted to occupy.   However, the board member advised that the couple was not claiming that either of them had a disability nor could the dog they were training fit into the definition of a "service animal" at the time that the dog would be brought into the park.  How would I suggest that the board respond to the request?

I suggested that the board should weigh a number of factors, including the following::

• While it did not appear that the board was required to grant the couple's request under either state or federal Fair Housing Laws or Disability Laws, the board did, as always, have the authority to grant exceptions to the community's "no pet" rules.
• The couple would be staying in the park for a relatively short period of time (30 days).
• The fact situation presented to the Board was certainly uncommon--how often would someone request an exception to the pet restrictions on grounds that the pet was being trained to be a service animal or guide dog?
• The couple had presented the board member with documentation that sufficiently established that they were in fact qualified guide dog trainers and were training the dog for that purpose.
• The couple had friends in the community and those friends and the other residents in the park would have the opportunity to learn about the work involved in training guide dogs and how these dogs help persons deal with their disabilities.

In short, I suggested that while I didn't believe that the Board was required to make an exception to the community's "no pet" rules, the Board could certainly justify an exception under these circumstances if it chose to do so.  I was most impressed by the efforts clearly being made by this community's board of directors to weigh all sides of the issue before making a hasty decision.  I sensed that the members of this community's board would apply common sense and compassion in its decision-making process and hope that all ROC boards follow this board's example.

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The Florida Legislature substantially revised several sections of our state's Condominium Act last year.   One of the important revisions focused on the length of time a unit owner could serve as a board member without seeking re-election.   Effective October 1, 2008, the terms of all members serving on condominium association boards were considered to expire at the next annual meeting unless the majority of the unit owners approved an amendment to the association's bylaws (or confirmed an existing bylaw provision) that would provide for "staggered" two year terms.   This revision to Florida Statute Section 718.112(2)(d)1, was accompanied by the rather curious statutory amendment found in F.S. Section 718.112((2)(d)3 which required that any candidate for a board position sign a "certification form" attesting that he or she had read and understood, to the best of his or her ability, the association's governing documents, the provisions of F.S. Chapter 718 and any "applicable rules".

Needless to say, these amendments created quite a stir among board members and managers in resident owned communities.   I received more than my share of calls and emails from ROC board members and managers asking whether their particular communities were subject to these new revisions.

At least for the immediate future, the answer to whether a particular ROC is subject to these  restrictions on the length of terms for its board members and the certification form requirement turns on whether that ROC's community association is a condominium association as opposed to a cooperative association, mandatory homeowners association or some other type of corporation:

• Condominium Associations fall within Florida Statute 718 and must comply with the statutory revisions to Section 718.112 governing the length of terms for board members and the certification form.
• Cooperative Associations are primarily governed by Florida Statute Chapter 719.   For the most part, Chapter 719 remained unchanged during the 2008 and 2009 Florida legislative sessions and for now residents of ROCs that are cooperatives continue to have the ability to decide for themselves the length of terms for board members and do not have to sign certification forms in order to run for positions of their boards.
• Florida Statute Chapter 720, which governs mandatory homeowners associations, also survived the 2008 and 2009 sessions of the Florida Legislature with no term length restrictions and no certification form requirement.

However, the 2010 legislative session looms in the not so distant future and I fully expect that attempts will be made to bring greater uniformity to the statutes governing the various types of community associations.  I'm not certain what will happen with the certification requirement but I won't be surprised if both cooperatives and mandatory homeowners associations find themselves subject to some sort of restrictions on term lengths by this time next year.   I'll keep you posted.

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The President of one the many "55 and over" resident-owned communities we represent recently contacted me to discuss what is becoming an all too familiar situation:

The rules governing this community specify that at least one of the persons occupying a home had to be at least 55 years of age and that any other person occupying the home had to be at least 45 years of age.   Many, if not most, "55 and over" ROCs in Florida have similar provisions.

During the past year, several residents in the community found themselves opening their homes to children who had lost jobs or were otherwise suffering financial hardships.    This community's rules were similar to many other ROCs and provided for a period of time (in this case, thirty days) where an underage person could occupy a home as a permitted "guest".   Unfortunately, none of these underage children were able to find affordable housing within that thirty day guest period. 

The residents had requested the Board for an extension of the "guest period" for their underage children and the Board had granted two separate extensions of ninety days and had advised each of the residents requesting these extensions that none of their current "guests" would be granted any further extensions.

All but one of  the underage children found affordable housing during the final extension period.  As can be expected, the members whose child was not able to secure housing outside of the community was now requesting that the Board grant yet another extension.  

I suggested to the ROC President that the Board should consider a number of factors in deciding whether to grant this latest request:

• The "55 and over" exemption to the Fair Housing Laws was not an issue as the parents (both of whom were over 55 years of age) would remain in the home with the child. 
• Since the "55 and over" exemption was not a factor, the real issue was whether the Board felt comfortable allowing a further exception to the community rules. 
• The Board had expressly stated to the requesting members that no further exceptions would be allowed and the residents in the community could certainly view the granting of another extension of time as a sign of weakness or lack of concern with enforcing the community rules.
• At the same time, every member knows the problems that our current economic crisis has created and a Board refusal to grant an additional extension might be viewed as heartless and insensitive.

I offered some guidelines that might help provide a solution--an extension for a shorter time period (perhaps thirty days) with the understanding that each and every request for an additional extension be accompanied by documentation establishing to the Board's satisfaction that the underage child was continuing to make good faith efforts to find employment that would provide him with an income sufficient to find housing outside of the community.

Clearly, there is no quick and simple answer for board members when considering requests based on the economic hardship of underage children of residents in the community.    What is clear is that every community may find itself dealing with requests of this nature in the near future.

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I've always told board members that the residents in their communities elected them to vote on the issues that come before them and not to refuse or decline to vote on those issues.   There are very few circumstances that justify a board member abstaining on an issue and most, if not all, involve situations where the board member would find himself in a conflict of interest if he voted on that particular matter.

The following are not valid reasons to abstain:

• The board member feels he doesn't know enough about the issue.   It's that board member's responsibility to do his homework about the issue before the meeting.
• The board member doesn't want to take an unpopular position or offend any of the residents.  Board members should not be elected because they are nice or will make the easy and popular decisions.   They are elected to properly and prudently make the sometimes difficult and unpopular decisions required  to effectively operate the community.
• The member, who happens to be the chairman/president, feels he only has to vote if a tie needs to be broken.   In most communities, the chairman/president is elected by only the members of the board while each board member is elected by the entire membership.   I believe that the chairman/president is first and foremost a member of the board that was elected by the entire membership and has been given and accepted the same responsibility of every other board member--which is to vote on every issue that comes before the board, regardless of whether a tie vote needs to be broken.

What is the effect of an abstention?  

• The 2008 amendments to Florida Statute Section 718.111(1)(b) provide that a member of the board of directors of a condominium association who abstains from voting "on any action taken on any corporate matter shall be presumed to have taken no position with regard to the action."   Apparently, that abstaining member's vote cannot be counted either for or against the action.  
• However, this provision is not found in Chapter 719.  Instead, cooperative associations are governed by Florida StatuteSection 719.104(8)(b) which provides that a director who is present at a board meeting is presumed to have assented to the action taken by the board unless  the director votes against such action or abstains because of an asserted conflct of interest.    It would seem that any abstention that is not based on a conflict of interest would be held to be a vote "for" the action taken by the board.
• It appears that the provisions of either Florida Statute Sections 607.0824(4) or 617.0824(4) will  apply to homeowners associations, depending on whether that particular association is organized as a for profit (Chapter 607) or not for profit (Chapter 617) corporation.   Those sections provide that a director who is present at a meeting of the board or a committee of the board when corporate action is taken is held to have assented to that action unless he either objects at the beginning of the meeting or promptly upon his arrival to holding the meeting or transacting specified affairs at the meeting, or he votes against or abstains from the action taken.   

As you can see, the statutes are not quite identical and can cause some confusion.   My apologies to those of you that caught my earlier entry this morning which did not include the reference to Section 719.104(8)(b).   We've talked about this not quite logical provision at a number of our seminars and thanks to the followers of this blog that reminded me of the inconstency between Chapter 718 and Chapter 719.  

In any event, the best way to avoid the questions arising from abstentions is for a board member to vote on the issue unless a conflict of interest prevents him from doing so.

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ROC managers and board members that have asked me to help create or amend rules governing their communities know that I stress the importance of a unit owner obtaining the written approval of the board before that unit owner can take certain actions, including the following:

• making additions to his unit
• bringing in another occupant
• having a pet
• leasing or subleasing his unit  

My colleague Michael J. Gelfand, a partner in the Gelfand & Arpe, P.A. law firm in West Palm Beach,  reported in the August 2009 edition of the Florida Community Association Journal on a recent decision from one of Florida's appellate courts.  It's the case of Curci Village Condominium Association, Inc. v. Maria, and the opinion of Florida's 4th District Court of Appeals focuses on a  provision in the condominium association's documents requiring prior written approval.

The unit owner in the Curci Village case defended the landscaping changes he had made by claiming that the association's president, who was also the manager for the developer who controlled the association, told him that he "didn't have a problem with" those landscaping changes when the unit owner first proposed them.  However, because the association's declaration of condominium required written approval for landscaping changes, a dispute between the unit owner and the association arose and resulted in this lawsuit.

The appellate court noted that Florida Statute Section 718.303 requires unit owners to comply with the condominium's declaration of condominium and viewed that the declaration of condominium was a written contract between the association and the unit owner.    Because that written contract (the declaration of condominium) required prior written approval for an alteration to the unit, the unit owner could not reasonably rely on the oral permission of the association's officer or director.

The Curci Village decision should be very helpful to ROC boards and managers in communities with rules requiring prior written approval when a unit owner who did not obtain such approval argues that the manager or a board member gave him verbal permission to perform the disputed action.  However, while it's always preferable to have rules requiring prior written approval, ROC managers and board members must remain vigilant and make sure that those rules are consistently and faithfully followed.

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Several weeks ago I mentioned the educational opportunities offered at the upcoming annual convention of the Florida Manufactured Housing Association at the Saddlebrook Resort just north of Tampa on October 7 and 8.  

I received a memo earlier this week from the FMHA about a "Round Table Discussion" that will be held at the convention at approximately 3:15 p.m. on October 8.   This discussion is entitled "What Works to Fill Homesite Vacancies?" and will cover a variety of methods and ideas that can be used to help communities find prospective residents.

Given today's economic climate, this is a very timely and important subject for ROC managers and board members.   Please note that this "Round Table Discussion" is open to all FMHA members and if you have questions and want to attend the convention please contact the FMHA at info@fmha.org.

Speaking of "Roundtables," I am in the process of  scheduling our first set of seminars for the "season" to be held in November and December.    We try to have several "roundtable" seminars each year in communities that are located in the geographical areas that we serve and if your community would be interested in hosting one of these events, please contact me.  

As always, we welcome your input in helping us plan the topics for these educational seminars--so if you have any subjects, questions, or issues that you'd like us to cover, please let me know. 

I'll post the dates, times, and locations of our November and December seminars in the near future.

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"Civility" is a new "buzz word" as a result of the outburst of the South Carolina congressman who yelled "you lie" during President Obama's address to the members of the Senate and House of Representatives last week.   Regardless of how one feels about the health care reform debate, this interruption of the President's speech by a member of the U.S. Congress was a shocking breach of decorum and left me feeling less than confident that our current elected officials would be able to reach any constructive resolutions to the important issues and challenges that we face.

I've had similar feelings recently after leaving several board or membership meetings in resident owned communities.   The past few years have seen a pronounced decrease in courtesy and respect and an increase in volume and vitriol.   I'm sure that almost every resident reading this has had at least one unpleasant experience with a board or membership meeting that deteriorated into a shouting match or name-calling contest.   

While no one should have to be told that his or her neighbor should be treated with respect and courtesy, the unfortunate reality is that ROC boards and managers must occasionally deal with residents that refuse to behave in a civil manner at board or membership meetings.

Florida Statutes governing board meetings in resident owned communities provide some assistance to ROC managers and board members:

• F.S. Sections 718.112(2)(c) and  719.106(1)(c), which apply to condominium associations and cooperative associations respectively, give unit owners the right to speak at board meetings on "all designated agenda items" but also allow ROCs to "adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements" to be made at board meetings. 
• F.S. Section 720.303(2)(b), which applies to meetings of mandatory homeowners associations,  specifies that members can "speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes" but again allows the association to adopt written reasonable rules "expanding the right of members to speak and governing the frequency, duration, and other manner of member statements" and also allows for the inclusion of "a sign-in sheet for members wishing to speak".

Note that all three statutes require that the rules governing members speaking at board meetings be written.

It's always helpful for the person chairing the meeting to be able to remind the membership at the beginning of the meeting or prior to the time for membership comments that the community does have these written rules and that each member will be expected to follow those rules.

We've helped numerous communities prepare written rules governing the behavior of residents at board and general membership meetings and have found that  these rules do help to discourage "gadflies" and other residents that attempt to engage in disruptive, discourteous, or uncivil behavior.  

If your community does not have written rules for these situations, you may be missing an important tool to help ensure that your members treat each other with the courtesy and respect that each resident in your community deserves.

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ROC managers and board members in "55 and over" communities know that the Fair Housing Laws and the Housing for Older Persons Act  require that at least 80 per cent of the homes in the community must be occupied by at least one person 55 years of age or older.  This requirement is often referred to as the "80/20 rule". 

Communities that qualify for the "55 and over" exemption do not violate Fair Housing Laws by denying occupancy to underage individuals. 

Every so often, a ROC manager or board of directors is confronted by one of the following situations:

• A prospective resident who is under the age of 55 claims that the 20 percent referred to in that "80/20 rule" must be reserved for underage persons--in other words, individuals under the age of 55 years.
• A prospective resident who is under the age of 55 but is disabled claims that he cannot be denied housing in the community because he is protected under the disability provisions of the Fair Housing Laws.

The rules governing the "55 and over" exemption clearly state that "at least" 80 per cent of the homes in a "55 and over" community must be occupied by at least one person 55 years of age or older.  It's the ROC and not a prospective resident that determines how the "20" in the "80/20" rule is to be used.   I've always advised ROC managers and board members to be very careful in allowing any portion of that 20 per cent to be considered "underage" housing in order to protect against the loss of the "55 and over" exemption.

A community that qualifies for the "55 and over" exemption can deny housing to an underage person who has a disability as long as the community can establish that the basis for the denial was not the disability but rather the fact that the applicant was not 55 years of age or older.    Again, the community and not the applicant determines how the 20 per cent is used and as long as the denial is based on the applicant's inability to meet the requirement that he be at least 55 years of age, the discrimination--which is based on age and not the disability--would not violate Fair Housing Laws.

Of course, every situation is different and several other factors are involved in the determination of whether a community is qualified to be protected under the "55 and over" exemption.   I would strongly advise any ROC to contact its attorney when faced with any question about Fair Housing Laws and the "55 and over" exemption..

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One of our ROC managers recently contacted me about a resident who claimed that the community was violating the Health Insurance Portability and Accountability Act of 1996 (often referred to as the "HIPAA laws").   While the community's rules and regulations did not allow pets, several exceptions to the "no pet" rules had been granted.   The manager and the board had compiled a list of the names and addresses of each person permitted to have a pet in his or her home and the complaining resident was certain that by creating  this list the community had violated HIPAA.

The HIPAA laws create a "privacy rule" that prohibits certain "protected health information" from being disclosed.  This "privacy rule" applies to the following persons and businesses that have been defined by the U.S. Department of Health and Human Services as "covered entities":

• Individual and group health plans that provide or pay the cost of medical care
• Every health care provider, regardless of size, who electronically transmits health information in connection with claims, benefit eligibility inquiries, referral authorization requests, or certain other transactions
• Health care clearinghouses such as billing services, repricing companies, and community health management information systems

ROCs would seem to fall well outside of any of the categories of these "covered entities" and as such would not be bound by the HIPAA privacy rules.

In addition, as I advised the community's manager, the mere fact that a resident is allowed to have a pet doesn't necessarily mean that the pet is in the home for medical or health reasons.   I thus did not see how the existence of this list violated HIPAA's privacy rules.

However, I did remind the manager that if a member requested a list of all residents in the community that had pets and the association had in fact compiled such a list, the association would have to produce that list as required by Florida's statutes governing condominiums, cooperatives, or homeowners associations.  

If a community does have a list of homes with pets--especially if the community is a "no pet" or a pet restricted community--I suggest that the list remain with the manager and that it not be distributed to the board or other members in the community.   This will take pressure off of the board and eliminate the danger that a board member may be accused of violating a resident's privacy rights.  Even if that accusation proves to be unfounded, it's an added aggravation and may result in expenses to the association that could have been avoided.

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The owner of a company that manages many ROCs throughout the state recently called and asked whether residents who wanted to be candidates for the ROC's Board of Directors had to first complete a "certification form."   My answer was "it  depends on whether the ROC is a condominium, cooperative, or subdivision."

While there are many similarities in the statutes that govern condominium, cooperative, and homeowners associations, there are also a some very important differences.   The "certification form" requirement is a prime example of one of these differences.

In 2008, Florida's legislators substantially revised portions of Chapter 718, which governs condominium associations.   Included in these revisions was an amendment to Section 718.112(2)(d)3 which now provides that:

• The "first notice of the date of the election" for the board of directors be accompanied by "a certification form" that is to be completed by a candidate for a position on the board of directors and that attests that the candidate "has read and understands, to the best of his or her ability, the governing documents of the association and the provisions" of Chapter 718 "and any applicable rules". 
• This signed "certification form" must be furnished by the candidate to the association by not less than 35 days prior to the election.
• The "certification form" is to be provided by the Division of Florida Condominiums, Timeshares, and Mobile Homes of Florida's Department of Business and Professional Regulation.

Inasmuch as (to the best of my knowledge) no candidate for Florida's legislature is required to sign a "certification form" attesting that he or she has "read and understands" our state's governing documents, one can be excused for wondering exactly what was going through the minds of our representatives in Tallahassee when this amendment was proposed and passed.

Currently, neither Chapter 719 (which governs cooperatives) nor Chapter 720 (which governs mandatory subdivision homeowners associations) contain a "certification form" requirement for board candidates.  Thus, any ROC that is not a condominium association and that does not have a "certification form" requirement in its governing documents need not provide these forms as part of its election materials nor would a member of one of these ROCs be required to sign that certification form to be eligible to run for the board.

However, rumor has it that our legislators have revisions to both Chapter 719 and Chapter 720 on the agenda for the 2010 legislative session and I'd be surprised if this 'certification form" was not part of the proposed amendments for both chapters.   Stay tuned for further developments.

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One of my blog readers recently emailed me and wanted to know whether Florida's "Sunshine Law" applies to meetings between less than a quorum of the members of the board of directors of an ROC.

Many members of resident owned communities incorrectly believe that the meetings of their ROC board or ROC committees are governed by Florida's "Sunshine Law," which can be found in Chapter 286 of the Florida Statutes.   It's clear from the provisions of this chapter, and in particular Section 286.011, that Florida's "Sunshine Law" only applies to meetings of boards or committees of state, county, or municipal agencies or other similar political subdivisions and not private enterprises.  In other words, only a very few ROCs (those that are agencies of state or local government--such as a community development district) are subject to Florida's "Sunshine Law".

Thus, in most situations, I see nothing wrong with a ROC President or other board member meeting with other board members as long as less than a quorum of the board is present during that meeting, even if the purpose of that meeting is to determine how the board members at that meeting are going to vote on a matter coming before the board in the future.   An effective President or board chairperson should already have a pretty good idea of how his or her board is going to vote on important matters before the board meeting and it's certainly logical that he or she contact the other board members in advance to find out how each member intends to vote and the reasons for that member's vote.

As long as there is less than a quorum of board members in the room where the meeting is occurring, even if ROC business is being discussed, there is no violation of the applicable provisions of Florida Statutes Chapters 718, 719, or 720.  I do want to remind ROC managers and board members that an illegal meeting occurs when a quorum of the board finds itself on the same conference call, receiving an email sent to them simultaneously, or in a "chat room" or other internet "meeting" area if that meeting was not properly noticed and made open to all members and does not fall within the limited exceptions that allow "closed" meetings.   The State's Department of Business and Professional Regulation will not take kindly to any such illegal meeting--even if it was held in "cyberspace".

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I recently received an email from a board member of one of the resident owned communities we represent.   One of the members of this ROC had requested a list of all of the "summer addresses" of the residents in the community.   The board member wanted to know whether the ROC had to provide the member with those addresses and whether it was appropriate to mail that member a list containing those addresses.

• Florida Statutes Section 718.111(12)(a)7, which applies to condominium associations, and Section 719.104(2)(a)5, which applies to cooperative associations, are identical and provide that  the association shall maintain "a current roster of all unit owners and their mailing addresses, unit identifications, voting certifications, and, if known, telephone numbers".   The statutes provide that this roster is part of the association's "official records".    The applicable provision of Chapter 720 governing mandatory homeowners associations almost mirrors its Chapter 718 and 719 counterparts.   
• Based on language of these statutes, and the "catch all" provisions in Sections 718.111, 719.104, and 720.303 (4), which include almost every other written record in the association's possession that is in any way connected with the operation of the community, once a member gives the association his or her "summer. address,"  that address becomes part of the association's official records and any other member can request to inspect and copy that address.
• The association is not required to mail the roster to requesting member.  The association's obligation in response to an appropriate record inspection request is simply to allow the member to inspect and copy those records.  However, I see no problem with the association mailing the roster to a member as long as any other member requesting the roster is notified of this option.  In other words, all members requesting the roster should be treated equally.   Obviously, if the roster is consistently kept current, the association can minimize time and inconvenience to its office staff by simply mailing the roster to the member and the member can be charged a reasonable cost for copying the list.

ROC members should understand that whatever addresses and telephone numbers they give to the association will have to be produced to another member that properly requests them.   ROC managers and board members should immediately contact the attorney representing their community upon receiving a request to inspect or copy records.

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Members of resident owned communities in Florida have the absolute right to attend meetings at which a quorum of the community association's board of directors are present.   A "quorum" is defined as a majority of the members of the board of directors.  Florida Statutes Section 718.112(1)(c), which applies to condominium associations, and Section 719.106(1)(c) , which applies to cooperative associations, specifically state that meetings of board of directors "at which a quorum is present shall be open to all unit owners."  Florida Statute Section 720.303(2) , which applies to mandatory homeowners associations, contains similar provisions.  The only time that a condominium or cooperative association's board of directors meeting need not be opened to the unit owners is when the meeting is between the board and the association's attorney with respect to proposed or pending litigation, when the meeting is held for the purpose of seeking or rendering legal advice.  The homeowners association statute has a similar exception that refers to proposed or pending litigation where "the contents of the discussion would otherwise be governed by the attorney-client privilege".

While the intention of Florida's lawmakers to keep board meetings open to the members of  community associations seems clear, ROC boards have, from time to time, felt the need to create their own "exceptions" to the statutory requirements.   Here are just a few examples of my favorite attempts to justify a ROC board of director's failure or refusal to comply with the requirements of Florida law:

1.   The board is meeting in "executive session" and can thus close the proceedings even   though a quorum of the board is present.

2.   The board's having a "workshop" or "agenda" meeting.  Even though there's a quorum present, the board's not voting on anything so the members don't have the right to attend.

3.    This is not a meeting of the board of directors--rather, it's a meeting of the "(insert appropriate committee name) committee"--even though a quorum of the board is present.

4.    The board's discussing some very sensitive matters (such as personnel issues or a member's failure to pay maintenance fees) and the meeting is closed to protect the privacy of the individual(s) being discussed.

5.    A quorum of the board just happens to show up on a regular basis at the same table at a nearby restaurant or wanders into the small conference room next to the community's office every Monday morning.   Of course, no association business would ever be discussed at these "coincidental" gatherings...

As I continually advise my ROC clients, if it looks like a duck, walks like a duck and quacks like a duck...it's a duck!   Regardless of what an ROC's board wants to call it, if you get a quorum of the board in a room together (or on a conference call, or in an internet chat room, for that matter), you've got yourself a board meeting and unless the very specific exception for seeking or receiving legal advice in regards to pending or threatened litigation applies, the meeting must be properly noticed and all association members have the right to attend.

Of course, the rules of reason apply.  The presence of a quorum of board members at the pool, at a social event in the clubhouse, or our seasonal ROC seminars usually won't constitute a "board meeting".   However, board members should be aware of the fact that the minute that it appears to even one association  member that a quorum of them are getting together (whether meeting in a corner of the clubhouse or by the pool even if during a purely "social" event), the board sets itself up for a claim that it is violating Florida law by having a 'closed meeting".   Those of you that have heard me speak know that I firmly believe that (a) every ROC has at least one resident "gadfly" whose sole purpose in life seems to be making board members' lives as miserable as possible and that (b) the minute an ROC's residents have any reason to believe that its board of directors are meeting "behind closed doors" those residents will immediately assume that the directors are up to no good.

You don't want to give the gadfly any ammunition and you want to keep your ROC happy and healthy...so keep the meetings open and let your ROC members see the hard work your ROC board does to make your community a great place to live.  

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Does an ROC have to allow a former member to inspect and copy the information about that member in the ROC's files?

One of the resident-owned mobile home cooperatives I work with received a written request several days after the sale of a unit from the former residents that sold the unit.  Those former residents, who were members of the cooperative, wanted to inspect the file that contained their personal information.   The ROC's manager told me that the former residents were concerned that their social security numbers were in that file.   

Florida Statutes Section 719.104(2)(c) provides that the "official records" of a cooperative association "shall be open to inspection by any association member or the authorized representative of such member at all reasonable times".   A condominium association has the same obligation to allow its "official records" to be inspected (again, by any association member or that member's authorized representative) under Florida Statutes Section 718.111(12)(c), and a similar provision exists for mandatory homeowners associations in subdivision communities per Florida Statutes Section 720.303(5).

It appears to me that these statutes give the right to inspect only to an association member or that member's authorized representative.   The governing documents of most, if not all, ROC's clearly provide that unit or lot ownership is a requirement of membership and many of these documents further provide that membership terminates upon the sale of the lot or the unit.   In other words, a resident ceases to be a "member" of the association when he or she closes on the sale of his lot or unit.  From that point forward, he or she is no longer a "member" (unless, of course, he or she owns another lot or unit in the community) and no longer can require the association to allow either that member or his or her "authorized representative" to inspect the association's "official records".  This is consistent with the definition of "unit owner" in both the cooperative and condominium statutes and "parcel owner" in the homeowners' association statute.  An ROC manager or board of directors would certainly have no problem refusing a record inspection request from a prospective purchaser who had not yet become an association member and the request from a former member should be refused for the same reason:  simply because the person requesting the inspection is not a member of the association.

While there do not appear to be any decisions from the arbitrators appointed by the Florida Department of Business and Professional Regulation that deal with whether a former member's request to inspect records can be denied, an arbitrator's decision in 2005 held that  "The Concerned Unit Owners of the Deauville Hotel Condominium Association" was not a "unit owner" and the association's receipt of a written request from that group did not create an obligation on the part of the condominium association to allow a records inspection by that group (Ibarra v. The Deauville Hotel Condo Assn., Inc., Arb. Case No. 2005-03-6532).  A similar decision was reached by the arbitrator in a 2007 case where a condominium association received a records inspection request from the "Plaza Resort and Spa Ad Hoc Committee" (Frank Hock, et. al v. Plaza Resort and Spa Condominium Association, Inc., Arb. Case No. 2006-06-8783). 

I would anticipate that the DBPR's arbitrators will continue to strictly define "member," "lot owner," and "unit owner" in the future and that only current (as opposed to past or future) association members will be the "members" entitled to inspect and copy the association's "official records".

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