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

I'm posting links for my blog readers to two articles from last Sunday's Sarasota Herald -Tribune and a story that was summarized in a recent edition of the Florida Manufactured Housing Association's newsletter.

• The first article from the Herald-Tribune focuses on the tragic consequences of an accident involving a golf cart.  I've covered this topic in the past but I remain very concerned that many residents in the communities we work with still do not understand that golf carts are vehicles and not toys. 
• With one hurricane (and the third named storm) spinning in the Eastern Pacific and several systems having already been investigated in the Atlantic, the second article in Sunday's Herald-Tribune is extremely timely.   It details the devastating effects of storm surge, which causes more deaths than any other feature of a hurricane.
• The battle being fought between neighbors at the Americana Cove manufactured housing community in Pinellas County is the subject of the third article from the St. Petersburg Times.   We've spoken at our seminars on many occasions about the issues facing the residents at Americana and there are no easy answers in this situation.

We'll get back to discussing how Senate Bill 1196 will impact resident-owned communities in my next entry.    In the meantime, I hope you find these articles interesting and informative.

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The National Oceanic and Atmospheric Administration (NOAA) just issued its predictions for the upcoming hurricane season, which begins June 1.

If NOAA's forecast is correct, we'll have a very busy summer tracking storms in the Gulf and the Atlantic:

According to NOAA, there is a seventy per cent chance of the following:

• 14 to 23 named storms (either tropical storms with top winds of at least 39 miles per hour or hurricanes)
• 8 to 14 of those storms will reach hurricane status (with top winds of at least 74 miles per hour)
• Of those 8 to 14 hurricanes, 3 to 7 will become major hurricanes (with top winds of at least 111 miles per hour)

I've posted on hurricane preparedness before but this is certainly a good time for ROC managers and board members to review their existing hurricane preparedness plans and to remind their residents (snowbirds and full-timers alike) of a few important points:

• Residents should not wait until the last minute to evacuate their communities--especially those in need of special care or with pets
• Do not leave lawn chairs, tables, etc. outside when a storm is on the way.  Anything that can become a projectile should be brought inside or be otherwise safely secured.
• A mandatory evacuation order means just that: evacuate your community.  Unless your clubhouse is a Red Cross certified storm shelter, it should not in any event be used to "ride out" the storm.
• Make sure all contact information for residents is readily available
• Appoint one or two "full time"residents (not the manager) to serve as the "information centers" in the event that a storm hits the community.  All residents should be advised to contact these residents rather than the manager or other board members for updates on conditions at the community.   The manager and the other board members will have their hands full in dealing with the challenges facing any community in the aftermath of a storm.

We all hope that this hurricane season will be as quiet and uneventful as last year's but, as always, taking the proper steps to prepare for the worst is the best course of action for managers, board members and residents in our communities. 

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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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Today's edition of the Sarasota Herald-Tribune has a  very interesting article on how Charlotte County has recovered from Hurricane Charley, which made landfall in the Punta Gorda area as a small but very powerful category 4 hurricane five years ago today, on August 13, 2004. 

There are several manufactured housing communities mentioned in the story and, with one tropical depression and a very strong tropical wave churning off the coast of Africa, I thought this would be a good time to remind ROC residents that a slower than usual start to our annual hurricane season should not give rise to a false sense of security.    The traditional peak of the season is still one month away and as we all know, hurricanes that occur in "slow" seasons (such as Hurricane Andrew, which devastated portions of southeast Florida in late August of 1992) can be just as destructive as those that occur in "active" seasons.  

As always, ROC managers and board members should be aware of the need to prepare for an unwelcome visit from one of these tropical systems.

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This will be a very short post but I wanted to highly recommend the July 2009 issue of the Florida Community Association Journal.  A substantial portion of this special issue is devoted to hurricane preparedness and the magazine is loaded with helpful hints and information (including many addresses for links to websites about weather, shelters, pets, road closings, county resources and safety).  It also includes a "Hurricane Preparedness Directory", which is a region by region list of potential service providers.

If at all possible, try to get a copy of this magazine and keep it around for future reference.  I don't believe the full content of the issue is available at the FLAJ site yet, but interested ROC managers and board members might consider the site as a good starting point to order a copy. 

Now let's all get back to crossing our fingers and hoping that we'll have a boring, uneventful, and safe hurricane season!

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I read two articles in last Sunday's edition of the Sarasota Herald-Tribune that should be of great interest to resident owned communities.

The first article focuses on the "false sense of security" that many Florida residents may have when the next hurricane approaches because they purchased "home protection products" even though the claims that these products make homes "hurricane resistant" or even "hurricane proof" may never have been tested or may in fact were found to be false.   It's a lengthy report but well worth reading if for no other reason than to remind managers and ROC board members of the dangers involved in recommending products or service providers.   Remember, we live in a world where potential liability lurks just around the corner.   No ROC wants to be sued because it recommended a product or service to one of its residents and that resident was injured or suffered damage to his property because the product or service recommended by the ROC board member or manager didn't perform as advertised.

The second article concerns the foreclosure crisis and reports that many lenders have now decided to delay taking title to properties that are in the process of being foreclosed.   There are a number of reasons for this, including those I've listed below:

• Lenders are now being required by judges to produce more records and file more pleadings and this adds to the time involved in the legal proceedings
• Lenders already have much more foreclosed real estate in their portfolios than they can sell at this time
• Every lender knows that once that lender takes title to a property at the foreclosure sale, that lender becomes responsible for both assessments and fees for the parcel and the maintenance and upkeep of the property                                           
• Lenders have no desire to pay any amounts for properties that are "non-performing" (that is, properties that are generating no income for the lender) and thus many of them have decided to leave these "non-performing" properties in "foreclosure limbo" rather than taking title to them.

This article simply confirms conversations I've had with representatives of several lenders within the past few weeks.

What this means for ROC's is quite simply that whatever rights ROC's have to collect unpaid assessments under Florida Statutes Sections 718.116(1)(b) (for condominiums), 719.108(1)     (for cooperatives) or 720.3085(2)(c) (for mandatory homeowners associations), those rights are triggered by the acquisition of title to the property--and if the lender chooses to delay the foreclosure proceedings, that "trigger date" will occur later (in some cases, much later) rather than sooner.  During this "limbo" period, ROC's will be forced to deal with properties that may not be properly maintained and are not providing any income to the community's coffers.  This is already creating substantial hardship for many communities thoughout the country. 

I certainly cannot tell you that relief is just around the corner from the many problems being created by the foreclosure crisis and the epidemic of untested, unproven, or defective "hurricane protection products" but I'll do my best to keep you posted when I read about any further developments.

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Another hurricane season has arrived in Florida and with every approaching tropical storm system I expect to receive at least one call from an ROC manager or board member asking whether the residents can use the community clubhouse as a storm shelter.  My answer is consistent although not always popular:   Unless the community clubhouse has been certified as a "hurricane evacuation shelter" (which means it meets the safety standards established by the American Red Cross), managers and board members should do everything in their power to discourage the use of the clubhouse or any other community building as a storm shelter.

When a condominium, neighborhood, subdivision, or manufactured housing community is placed under a mandatory evacuation order by Florida's Governor or county or local authorities, "mandatory" doesn't mean "I'll leave if and when it's convenient" or "I'm not leaving without my dog/cat/bird"--it means that the refusal of that resident to leave the community in spite of being ordered to do so is a crime--a second degree misdemeanor under Florida law.  I'm certainly not going to advise any client community to help a resident commit a crime and technically that's what managers or board members are doing when they give residents a reason to remain in the community once that order is issued by allowing the clubhouse to be used as a gathering place during a storm.

Here's a partial list of what can go wrong when residents are allowed to use a clubhouse that has not been certified as a hurricane evacuation shelter:

1. The hurricane roars through, the clubhouse doesn't withstand the force of the winds and/or the storm surge, and residents that were using the clubhouse for shelter are injured or killed
2. The clubhouse manages to withstand the storm but one of the residents in the clubhouse suffers a stroke or heart attack and dies because the clubhouse had neither the trained personnel nor equipment present to treat that resident and the county's paramedics were busy dealing with numerous other emergencies or were unable to safely enter the community.
3. The hurricane roars through, the clubhouse survives, and everyone is fine until a resident walks outside, and steps on a downed power line in the community and suffers severe injury or death.

The community association's liability in each of these situations may be substantial and it's entirely possible that the association's insurance company will--with good reason--say that its coverage does not protect the association from claims filed because of an injury or death that occurred because the association allowed the clubhouse to be used for a unauthorized and unlawful purpose.

I've even suggested that associations padlock the clubhouse when a mandatory evacuation order issues or at the very least post signs in bold letters at every entrance way to the clubhouse and any other community buildings to warn every resident that the building is not a hurricane shelter and that any resident that uses the building for that purpose does so at his or her own risk.

There's no reason in this day and age for anyone living in Florida  to be unprepared for an approaching tropical storm system.  Media outlets such as The Weather Channel have almost constant updates when tropical weather threatens our area and the National Hurricane Center provides timely and accurate information that allows all residents to follow and prepare for hurricanes and tropical storms.    Almost every local newspaper and television station publishes an annual hurricane special insert that contains suggested preparedness lists, tracking maps, and locations of certified hurricane evacuation shelters.  Florida's laws also provide shelters for residents with pets, and seek to identify residents with "special needs" who may require assistance in evacuating to the appropriate shelter.  In short, no resident in a community without a certified hurricane evacuation shelter remain in that community when a mandatory order issues to evacuate that community and no community association should encourage its residents to use the community clubhouse or other community owned building to "ride out the storm."  

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