Hurricane Irma Approaches Florida

 I'm sure everyone reading this post is well aware that Florida is being threatened by a massive and powerful hurricane that has already caused numerous deaths and incredible destruction over the past few days.

I'm typing this on Thursday afternoon (September 7th) and Hurricane Irma remains a Category 5 system capable of causing additional catastrophic damage.  Winds are still in excess of 180 miles per hour and tropical storm force winds extend at least 150 miles from the center of the storm.

If you are reading this in Florida, you know that water, D batteries, bread and other supplies are very hard to find and lines at many gas stations are growing by the minute.  Courts and other state and county offices (if they have not already closed) will be closed tomorrow.  Sporting events have been rescheduled or canceled, schools are closing, and airports are chaotic (and many will be closing within the next twenty four to forty eight hours).

I've posted several times in the past about the importance of following mandatory evacuation orders and not using your community's clubhouse or other common area facility as a shelter to "ride out" the storm.  I cannot overly stress the importance to evacuating when you are ordered to do so and, unless your clubhouse/common area facility is a Red Cross certified hurricane shelter, you should not use it as such.  If you have pets, you should have long ago determined what shelters are "pet friendly" and should have taken all steps needed to reserve a space at that shelter.

If you are remaining in Florida, or in any other area threatened by this dangerous hurricane, please check out Bryan Norcross' Facebook page for a very good list to help you deal with the days ahead.  

As always, the National Hurricane Center's site can provide you with much needed information about the storm.

Our office will be closed tomorrow (September 8) and hopefully we will be back up and running on Monday, September 11.

I pray that all of you and your communities are spared the worst of Hurricane Irma.

Estoppels, Estoppels, Estoppels!

Effective July 1, 2017, Florida's condominium, cooperative and mandatory homeowners' associations (and the management companies hired by those associations) will have some certainty and guidance when dealing with requests for estoppel certificates.

Florida Statute Sections 718.116, 719.108, and 720.30851 have all been amended.

Here are just a few highlights of those amendments:

As I said, these are just a few of the "highlights".

  • The estoppel certificate must now be issued within 10 business days after the association receives the request (rather than 15 days as previously provided)
  • Each of the amended statutes now specifically provides that the estoppel certificate contain certain information and each further provides that the information is to be "substantially" in a form provided in each of these statutes
  • A thirty or thirty-five day effective period (depending on how the estoppel certificate is sent to the requesting party) is provided for in each of these amended statutes
  • The association or its authorized agent (such as its management company) may charge a "reasonable fee" for the preparation and delivery of an estoppel certificate. Where there are no delinquent amounts owed on the date the certificate is issued, that fee cannot exceed $250. If the certificate is requested on an "expedited basis" and delivered within three business days after the request, an additional $100 may be charged, and, if a delinquent amount is owed to the association for the unit or parcel in question, an additional amount not to exceed $150 can be charged
  • There are provisions governing calculating the amounts that can be charged for estoppel certificates for multiple units or parcels owned by the owner

If you are interested in reading the full text of Senate Bill 398, you can link to it here.

Please feel free to contact me through this blog if you have any questions.

A Busy Off Season in the Fair Housing World

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

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

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

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

 

 

Welcome to a Busy 2016!

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

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

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

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

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

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

All Eyes on Erika

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

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

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

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

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

CAMs and the Unauthorized Practice of Law (2015 Version)

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

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

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

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

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

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

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

I hope you're enjoying your summer!
 

 

Are You Ready for E-voting?

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

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

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

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

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

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

Flags, Ducks and Purchase Offers

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

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

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

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

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

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

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

 

Florida Tightens Up its Service Animal Laws

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

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

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

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

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

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

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

 

Resolution for 2015

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

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

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

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

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

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

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

 

Cooperative and HOA Boards Will Soon Have Emergency Powers

Florida's Governor has signed into law Senate Bill 807 which contains very important changes to the laws governing resident owned communities. I'll discuss many of those in future entries to this blog but since we're now into hurricane season, I thought I'd first highlight the creation of Florida Statute Sections 719.128 and 720.316, both of which are entitled "Association emergency powers".

These new sections allow the boards of directors in cooperative associations and mandatory homeowners associations to exercise certain powers and take certain actions in response to damage caused by an event for which a "state of emergency"is declared under Florida law in the area where the community is located, unless specifically prohibited by the association's governing documents.

These powers and actions include the following:

  • Conducting, canceling, or rescheduling board or membership meetings after notice of the meetings and board decisions is provided in "as practicable a manner as possible," which may be by numerous methods, including "any other means the board deems appropriate under the circumstances."
  • Designating assistant officers who are not directors
  • Relocating the association's principal office or designating an alternative principal office
  • Entering into agreements with counties or municipalities to assist with debris removal
  • Implementing a disaster plan which may include turning on or shutting off electricity, water, sewer, or security systems and air conditioners for association buildings

There are other important emergency powers that I'll discuss in my next entry.

I want to close with a few additional points:

  • These new sections extend to boards of directors in cooperatives and mandatory homeowners associations similar powers that were granted to condominium association boards several years ago.
  • The powers must be exercised so as to be consistent with Florida Statute 617.0830.
  • Included in the emergency powers for the board of directors of a cooperative association is the power to require the evacuation of the cooperative property in the event of a mandatory evacuation order in the area where the community is located. If a unit owner or other occupant of a cooperative fails to evacuate the cooperative property after the board has required that evacuation, the association is immune from liability for injury to persons or property arising from such failure. In other words, a unit owner or occupant remains in the home at his or her own risk--not the cooperative association's.  

These two new statutes become effective July 1, 2014 and I'll discuss some additional powers and limitations in my next blog entry.

Retrofitting and Mobile Home ROC's

 Now that Memorial Day is behind us, and many of our "snowbirds" have returned to their northern homes, my blog followers who are managers or board members in resident owned manufactured housing cooperatives can turn their attention to subsections (5) and (6) Florida Statute Section 719.1055.

When I last checked, none of the manufactured housing communities in our state qualify as "high-rise" buildings and. other than certain common area amenities (such as the clubhouse), it would appear that the provisions of these two subsections, which require the members of a cooperative to "opt out" of retrofitting requirements for fire sprinkler systems and handrail and guardrails, simply are not relevant to manufactured housing communities.

Nonetheless, the requirements of these two subsections do seem to apply to all residential cooperatives, including manufactured housing cooperatives.

I'd thus suggest that managers and board members in manufactured housing communities governed by Florida's laws governing cooperatives take the steps needed to allow their members to waive these retrofitting requirements.  

Please note that, while the vote to forego fire sprinkler retrofitting can be obtained by limited proxy or by ballot personally cast at a membership meeting,  neither limited nor general proxies can be used for a vote to waive the retrofitting requirements for handrails and guardrails--that vote must be obtained at a duly called membership meeting or by the member signing a written consent. 

There are additional requirements in these two subsections, including reporting to the Division of Florida Condominiums, Timeshares, and Mobile Homes.  From what I've read so far, none of the bills passed in Tallahassee during the recent legislative session eliminate these provisions.

This summer might be a very good time for managers and board members in our manufactured housing cooperatives to work on giving the unit owners in their communities the opportunity to vote by the end of this year or in early 2015  to forego both of these retrofitting requirements.  

Let's all have a safe and restful summer--one with no hurricanes or tropical storms on the horizon! 

4th Annual CA Festival This Month in Venice

There's a great opportunity for managers and board members of resident owned communities scheduled for Wednesday, April 16, at the Venice Community Center.   It's the 4th Annual Community Association Festival, complete with free breakfast and lunch, prizes, food, steel drums, lots of Hawaiian shirts (wear one if you're attending) and informative and interesting presentations from experts on topics like banking, insurance, plumbing problems, and engineering issues.

We'll also be breaking into three separate groups (one each for board members and managers in condominiums, cooperatives, and deeded subdivisions) for legal updates specifically geared for each group.  I'm pleased to once again be presenting the legal update for the cooperative association board members and managers.

Again, this is a free event.   Registration starts at 8:30, the presentations will run until 12:30 or so, and a free barbecue lunch will follow. 

If you want to attend, all you need to do is email Deanna Mixon at DeannaM@SPTPlumbing.com.

Free food, prizes, steel drums, and information:  sounds like a great way to spend the first part of the day!

If you are a newly elected or appointed board member in a cooperative and are looking to fulfill the educational requirement for board certification (or if you just want to become better informed about the laws governing cooperative associations) , I'll be presenting my Cooperative Board Member Certification course on Tuesday, April 8, 2014, at Molokai, which is at 1 Hawaiian Way in Leesburg. Registration starts at 9:15 a.m. and the course begins at 10 a.m. and should conclude by no later than 1 p.m.  Please rsvp by email to Frank@mid-fl-roc.com if you wish to attend.

I hope to see many of you later this month at Molokai or at the Venice Community Center!

CA Day, Community Matters, and Board Training

I'm posting a link for tomorrow's Community Association Day scheduled at the Bradenton Area Convention Center.   CA Day is always a very well attended event with tremendous opportunities for ROC Board Members to learn, network, and have fun.   Admission is free but if you have a chance to rsvp for the event please do so.   We anticipate a record-breaking turnout this year.

I'll also be taping this Saturday's edition of  "Community Matters" at CA Day after participating in the attorneys' panel discussion and look forward to a very busy morning tomorrow.

My first three certification training presentations for board members in cooperative associations have been completed and I am very pleased with the attendance and the questions and comments I've received.   I have co-op board member certification training courses scheduled for March 26 at Imperial Bonita Estates in Bonita Springs and April 8 at Molokai in Leesburg.

I hope to see many of our ROC friends at CA Day tomorrow, later this month at Imperial Bonita Estates, or in April at Molokai.

Enjoy this first day of Spring!

One More Date for Co-op Board Member Training

Our first certification training course for board members of resident owned cooperative associations was a great success with over 80 attendees earlier this week at Westwinds Village in Bradenton.  Thanks to everyone that attended and to Westwinds for its great hospitality.

We've added one more date to those we've already scheduled:

  • Wednesday, March 26th at Imperial Bonita Estates in Bonita Springs.   We'll start at 10 a.m. and should end by no later than 1:00 p.m.   There's no charge and light refreshments will be served.

Please keep in mind that my board certification course has only been approved for board members in cooperative associations but all board members and candidates board positions are invited to attend.

Please email Karen Midlam (kmidlam@lutzbobo.com) or Kathy Sawdo (ksawdo@lutzbobo.com) to rsvp for this or any of the other training courses I am offering during the next few months.

All of my blog readers will find this week's episode of "Community Matters" very interesting and entertaining.  My guest will be a wildlife trapper and we'll be spending the hour talking about feral cats, hogs, coyotes, bears, bobcats, and other uninvited visitors to our resident owned communities.  "Community Matters" can be heard Saturday morning at 11 on WSRQ Radio (1220 AM and 106.9 FM in Sarasota and Manatee Counties) or online at sarasotatalkradio.com.  You can also listen to our podcasts that are usually posted on the Monday after the show.

Have a great weekend and hope you enjoy the weather!

Time for Co-op Board Member Training!!

Welcome to the new world of training for board members in our resident-owned cooperatives!

Annual meeting season has begun and new board members are being elected.  As you know, Florida Statutes now require that newly elected or appointed board members either certify in writing to the co-op’s secretary that the new board member has read the association’s bylaws, articles of incorporation,  proprietary lease, and current written policies, that the board member will work to uphold those documents to the best of his or her ability, and that the board member will faithfully discharge his or her fiduciary responsibility to the association’s members---or, instead of providing that written certification, a newly elected or appointed board member can submit a certificate of having satisfactorily completed a seminar approved by the Department of Business and Professional Regulation (DBPR) for training co-op board members.  This must be done within 1 year before or 90 days after the new board member’s election or appointment. 

I’m pleased and excited to announce that my course materials were approved by the DBPR late last year and I’ve scheduled my three hour program for 4 separate locations in the next few months:

  •  Wednesday, February 12, starting at 9:30 a.m. at Westwinds Village in Bradenton
  •  Wednesday, February 19, starting at 9:30 a.m. at Country Club Estates in Venice
  •  Tuesday, March 18, starting at 10 a.m. at Hammock Estates in Sebring
  •  Tuesday, April 8, starting at 10 a.m. at Molokai in Leesburg

My program is specifically designed for board members in co-ops and is NOT approved for certification of board members in condominium associations or homeowners associations governed by Chapter 720 of the Florida Statutes.

There is no admission charge and light refreshments will be served.   All co-op board members, whether or not newly elected or appointed, are encouraged to attend.  Even if those board members don’t need to be “certified,” I’m sure they’ll find the three hours worthwhile.  The price is right and everyone will have an opportunity to meet fellow board members from neighboring communities.

We do need to have a good idea of the number of current or new board members (or candidates for the board if your elections have not yet occurred) in order to make sure our host communities have enough refreshments and seating, so please RSVP to Karen Midlam (kmidlam@lutzbobo.com() or Kathy Sawdo (ksawdo@lutzbobo.com) at your earliest convenience.

Depending on the needs of our friends in Lee, Collier, and Pasco Counties, we’ll schedule either a board training program or one of our regular community association “roundtables” in those areas in the very near future.

I look forward to seeing many of you at one of these board training sessions in the next few months and I hope all of you are enjoying a very happy and healthy beginning to 2014.

 

A Follow Up on HOA Registration

In the week or so since my last entry, I've been contacted by managers and board members from several resident owned cooperatives who have received notices about the new recent requirement for mandatory homeowners associations to register with the State. 

I want to clarify that condominium associations formed under Florida Statute Chapter 718 and cooperative associations formed under Florida Statute Chapter 719 do not have to worry about this new requirement as these associations have already registered with Florida's Department of Business and Professional Regulation.

The new registration requirements apply to mandatory homeowners associations governed by Chapter 720 of the Florida Statutes --not condominiums or cooperatives.

I'd suggest that a manager or board member of any condominium or cooperative association that receives one of these notices contact his or her attorney and provide that attorney with a copy of that notice.   Other than the DBPR's press release, which was included in my last entry, I don't know of any other official notice that would be sent by the State and I'm concerned that one or more enterprising services may be offering to "help" an unsuspecting community register (for a fee, or course) even if the community is not required to do so.

Several of the resident owned cooperative associations we work with have the phrase "homeowners association" in their corporate name.  Those associations are nonetheless still cooperatives governed under Chapter 719 regardless of the fact that their unit owners refer to themselves as members of a "homeowners association". 

When it comes to some cooperatives (as well as some condominiums and non-mandatory homeowners associations), a rose by any other name may still be a rose.

Again, if you have any questions about whether these new registration requirements apply to your association, please contact your association's attorney.

 

Website for HOA Registration Announced

I was just forwarded a press release from Florida's Department of Business and Professional Regulation announcing the creation of its website for mandatory homeowners' associations to register online.

As my blog readers may recall, Florida's legislature recently passed a law that for the first time requires all mandatory homeowners' associations (governed under Chapter 720 of the Florida Statutes) to provide certain information to the State.  Community Association Managers should remember that it appears from this legislation that any CAM that manages an HOA is responsible for filing this information.

The content of this press release follows:

To: Members of the media

Date: September 27, 2013

From: DBPR Communications Office, 850.922.8981

 

Registration website for HOA and Community Association Managers live

 

TALLAHASSEE, Fla. – The Florida Department of Business and Professional Regulation (DBPR) today launched the website where homeowners associations (HOA) and Community Association Managers (CAM) are now required to register. The website was created as part of recently passed state legislation (Chapter 720, FS), which requires community association managers, community association management firms or HOAs, in the absence of a CAM, to report information about the associations before the deadline of November 22, 2013.

 

“We’ve worked really hard to create a website that collects all of the data required by law to track the number of homeowners associations in the state,” said Secretary Ken Lawson. “It’s important that associations become aware of the new reporting requirement and meet the deadline.”

 

During the 2013 Legislative Session, HB 7119 made several changes to HOA governance, including the requirement for HOA associations to register with DBPR. Additionally, the legislation provided DBPR with authority to take administrative action against a community association manager’s license for violations of state laws relating to condominiums, cooperatives and homeowners’ associations that are committed during the course of performing contractual community management services.

 

Associations may now register with the Department at www.myfloridalicense.com/hoa. If individuals have any questions throughout the one-time registration process, they may contact the Department at 800.226.9101.

 

The Department of Business and Professional Regulation’s mission is to license efficiently and regulate fairly. The Department licenses and regulates more than one million businesses and professionals ranging from hotels and restaurants, real estate agents and certified public accountants to veterinarians, contractors and cosmetologists. For more information, please visit www.MyFloridaLicense.com.

We'll next have to wait and see exactly what type of curriculum the DBPR's developed to meet the new laws requiring newly appointed board members in cooperatives and mandatory HOA's to meet the educational or certification requirements previously only applicable to board members in condominium associations.   That's an entry for another day.

 

Bank Failures and Back Taxes

 The Sarasota Herald Tribune just published a very informative six day report on the reasons for the many bank failures in Florida during the "Great Recession."   

Since almost every ROC in our state has been affected by questionable loans that have been foreclosed or are currently in the process of foreclosure, I thought my blog readers might be interested in the Herald Tribune's series.

I'm also posting the link to one of Tom Lyons' columns in the Herald Tribune published earlier this week as a reminder to owners in resident owned communities.   There is a tax due and owing to the State of Florida when a mobile home, site built home, or condominium is rented on a "short term" basis and the failure to pay that tax will not be taken lightly by our state's enforcement agencies.

Just a word to the wise:  pay the tax on those rentals!

Among the guests on this week's edition of "Community Matters" is Sarasota County's sheriff--I have a feeling that benefits and dangers of "neighborhood watch" programs will be one of the topics on the agenda.  I hope you'll take the opportunity to listen to our guest host, Cindi Bass, this Saturday morning at eleven or on our podcast released early next week.

 

Repairs versus Spending Limits in ROCs

Briny Breezes is a resident owned manufactured housing cooperative located in Palm Beach County.

Two of the community's sea walls that protected the cooperative property needed repairs and upgrades.   The directors of Briny Breezes, Inc., the cooperative association that owns and operates the community, hired an engineer who reported that the required repairs and upgrades to the seawalls would cost approximately $150,000.

While there were adequate funds in the association's reserve account to pay for these repairs, Briny Breeze's governing documents clearly prohibited the association's board of directors from spending more than $30,000 for capital improvements or spending more than $30,000 for replacement of capital assets in any fiscal year.  According to the association's governing documents, the affirmative vote of at least 51 per cent of the members was required for these expenditures.

Earlier this year, Briny Breeze's manager asked the Division of Florida Condominiums, Timeshares, and Mobile Homes (the "Division") to determine whether the association's board of directors could use the reserve funds to pay for the seawall repairs that were needed to protect the cooperative property without obtaining the approval of the association's members.

The Division, in its Declaratory Statement issued this May, held that the association could use its reserve funds to make the needed repair to the seawalls without a vote of the membership.

The Declaratory Statement cited Florida Statutes Section 719.104(5), a federal bankruptcy court decision interpreting Florida law, several decisions of our state appellate courts and a decision rendered by one of the Division's arbitrators. 

The Division noted that , even if expenditures result in alterations or improvements to the community's common elements, it is within the board's authority to authorize these expenditures without member approval where the expenditures for the alterations or improvements are needed to protect the common elements.

At the same time, the Division did caution that an association's directors might very well be precluded from unilaterally spending money for upgrades that constituted material alterations to the common elements and went beyond the repairs required to protect the common elements.

The Division concluded that, while the "safest course for the board is to get a unit owner vote", the board should not be limited to "simply repair the sea wall to protect the common elements."

Hopefully, this Declaratory Statement will provide ROCs with some guidance in the future.

I'll be discussing issues affecting aging members of resident owned communities this week on "Community Matters".

Furry Companions and Service Animals next on "Community Matters"

You'll want to catch our next installment of "Community Matters" as Kevin Wells and I will be discussing therapy and companion pets and service animals with the manager of a large resident owned community in Sarasota County and a representative from Southeastern Guide Dogs.

"Community Matters" airs on WSRQ (1220 AM and 106.9 FM) on Saturday mornings from 11 to noon and online at www.sarasotatalkradio.com.   Podcasts of each of our shows are made available on Mondays after the show airs at the WSRQ site--just click on my photo and you'll be able to listen to those podcasts.

If you have any questions about this topic or suggestions for future shows, please feel free to post a comment to my blog or email me at sgordon@lutzbobo.com.

I hope you enjoy this Saturday's installment of "Community Matters".

An Update on ROCs and Music Licensing

I've written several entries on the risks that ROCs take when copyrighted music is played in their communities.

Last year, the National Association of RV Parks & Campgrounds ("ARVC") introduced a new benefit for its members--a combined music licensing agreement with two of the three major music license companies, ASCAP and BMI.

In connection with this new benefit, the ARVC prepared a very concise and informational "FAQ" sheet for its members.

While most of Florida's ROCs are not members of the ARVC, I hope you'll find that FAQ sheet--aptly titled "What You Need to Know About Music Licensing" educational and useful.

On last Saturday's "Community Matters" radio show, I discussed hurricane preparedness with Ed McCrane, Sarasota County's Emergency Management chief, and then spoke with State Representative Mike Fasano about the need to change the policy of the Florida Hurricane Catastrophe Fund, which currently may exclude some condominium developments from the Fund's reinsurance coverage--which has the potential to substantially and negatively impact condominium associations and unit owners throughout the state.  The podcast of that show is now available at the "Community Matters" site.

Copying Official Records? Get Out Your Smartphone!

The recent revisions to Florida's laws governing condominium associations, cooperative associations, and mandatory homeowners' associations updated the procedures for producing, inspecting and copying an association's "official records".

Effective July 1, 2013, an association in Florida's resident owned communities can satisfy the requirement that it make its official records available for inspection and copying by:

  • making the records available to a member electronically via the Internet or
  • allowing the records to be viewed in an electronic format on a computer screen and printed upon request

Board members and managers in resident owned communities should note that the association is not responsible for the use or misuse of the information provided to a member or that member's representative when it complies with the requirements to produce official records for inspection or copying unless the association has an affirmative duty not to disclose that information--for example, if that information falls within the category of "protected" official records.

In addition, associations must now allow a member or his or her authorized representative to use portable devices, including smartphones, tablets, portable scanners, or any other technology capable of scanning or taking photographs, to make an electronic copy of the official records instead of the association providing that member or his or her representative with a copy of those records.  The association may not charge that member or his or her representative for the use of a portable device. 

Again, board members and managers should remember that certain information--while part of the association's official records--is not to be produced to members and great care must be taken to carefully inspect all records and to remove or redact all information that is required to remain confidential or otherwise protected before those records are produced to the member or his or her representative.

When faced with requests to produce records for inspection or copying, an association should strongly consider consulting with its attorney before responding to that request.

We'll be discussing hurricane preparedness and Citizens Insurance this Saturday from 11 to noon on Community Matters and I hope you'll listen live or by podcast.

Co-op Board Members Now Subject to Certification Requirements

On Friday, June 14, Florida's Governor signed into law several bills affecting community associations, including House Bill 73.

One of the important provisions of House Bill 73 amends the statutes governing cooperative associations in Florida by requiring board members in co-ops to meet the same certification requirements as condominium association board members.

Florida Statute Section 719.106 will now require a newly elected or appointed board member in a cooperative association to do one of the following within 90 days of that election or appointment:

  1. Certify in writing to the association's secretary that the board member has read the association's bylaws, articles of incorporation, proprietary lease (or occupancy agreement), and current written policies, and that the board member will work to uphold such documents and policies to the best of his or her ability, and that he or she will faithfully discharge his or her fiduciary responsibility to the association's members
  2. Submit a certificate that the board member has--within one year before or 90 days after his or her election or appointment--satisfactorily completed the educational curriculum administered by an educational provider as approved by the Department of Business and Professional Regulation's Division of Condominiums,Timeshares, and Mobile Homes under the requirements established in Florida's statutes governing condominium associations

This educational certificate is valid and does not have to be resubmitted as long as the board member serves on the board without interruption.

The association's secretary is required to retain both of the written certifications described above as part of the association's official records for 5 years after a director's election or the duration of the director's uninterrupted tenure, whichever is longer.

The educational curriculum requires that at least four of these topics be covered in sufficient detail:

  • Budgets and reserves
  • Elections
  • Financial Reporting
  • Cooperative Operations
  • Records maintenance, including unit owner access to records
  • Dispute resolution
  • Bids and contracts

The effective date of HB 73 is July 1, 2013.  I've been working on an outline of curriculum (those of you that attended FLAROC's Board Training event in Punta Gorda in March had a preview of that outline) and hope to provide it to the DBPR for approval--and for use in our resident owned community seminars--within the next week.

I'll keep you posted on this and other important impacts of HB 73 in future blog entries.

"Community Matters" Debuts This Saturday

I'm pleased to let my blog readers know that I'll be one of the hosts of "Community Matters," a radio show that will focus on issues and topics affecting resident owned communities.

The show will be airing on WSRQ, Sarasota's "TalkRadio," each Saturday morning from 11:00 to noon, at 1220 on the AM dial and 106.9 on the FM dial. 

Podcasts will also be available at www.sarasotatalkradio.com.

The first installment of "Community Matters" airs this Saturday, June 8th.  I'll be speaking with Travis Moore, of Moore Relations, Inc. 

Mr, Moore is a lobbyist who has spent many years representing the interests of residents of community associations in Florida and we'll be discussing several very important bills passed during the 2013 legislative session, including revisions to the laws affecting foreclosures, copying and producing association records, and membership directories as well as a new law concerning the registration of mandatory homeowners' associations with the State.

I hope you'll take the opportunity to listen to the show live or by podcast and will look forward to your questions and suggestions for future installments of "Community Matters."

It's Time to Purchase Flood Insurance

Earlier this week, Florida's Insurance Commissioner encouraged homeowners in our state to purchase flood insurance prior to May 1 in preparation for the upcoming hurricane season, which, as you may have read, has been predicted to be very active.

Purchasing or renewing a flood insurance policy prior to May 1 will also allow homeowners to avoid a significant  rate increase scheduled for October 1 of this year.

The Insurance Commissioner noted that Florida homeowners can purchase flood insurance from the National Flood Insurance Program (NFIP) for up to $250,000 for property damage and $100,000 for personal contents and that excess coverage can be purchased for homes valued at more than $250,000.

Many of our neighbors still don't understand that their homeowners' insurance policies do not cover damage caused by flooding.  Since flood insurance is readily available to all homeowners and is definitely affordable, the failure to have this coverage is inexcusable.

It would be a shame to incur substantial expenses as a result of damage that would have been covered by this easily obtainable insurance.

Let's hope none of us need flood insurance during the 2013 storm season--but it's always better to be safe rather than sorry!

Alert: Small Business Scam Targets ROCs

I just finished speaking with the manager of one of the resident owned communities in our area.

An email was received at the community's email address, allegedly from the Federal Trade Commission.  The subject of the email was "NOTIFICATION OF CONSUMER COMPLAINT" and the email contained a very official looking document advising that a customer had complained "about your business and believes you have contravened the Consumer Credit Protection Act (CCPA)".

The document further stated that "Federal Trade Commission has initiated a formal investigation into this complaint" and asked the association to "consider the details of the enclosed letter"--which conveniently did not accompany the email.   Instead, the document advised the association that the letter (which contained the complaint) could be downloaded from a website listed in the document.

The document advised the association that it was "welcome to contact us regarding this matter" using a form that could be downloaded from another website address.

The document closed with the address of the FTC and its website and warned the association that "the FTC is required to post information about businesses who fail to respond to consumer complaints".

Our firm's technology professional quickly determined that the email was yet another scam and located this link that describes the scam in detail.  

You'll note that the Federal Trade Commission advises the recipients of this scam that they should not click on the links to the websites listed  in the email.

Managers and board members of resident owned communities should always be alert for these scams and use common sense--after all, it's doubtful that, even in this day and age, any agency of the federal government would choose email to notify a business of a consumer complaint.

Our best wishes for a happy and healthy holiday weekend.

Two Exciting Educational Opportunities in March

We're now into the busiest part of the "season" for resident owned communities and I wanted to alert all of our blog readers living in west central and southwest Florida that two great events are scheduled for later this month:

  • FLAROC has asked me to participate in a Board Training Session for directors in resident owned manufactured housing cooperatives Thursday, March 21, at River Forest Village in Punta Gorda. Check-in starts at 8:30, the training will run until noon, and we'll conclude with a question and answer session.  There will be light refreshments provided and there is no charge for this program.   While Florida Statutes still do not require directors in cooperative associations to attend board training, I'd certainly recommend that present or prospective board members take advantage of this free event.  Please contact Mary Danitz from Florida Shores Bank at mdanitz@floridashoresbank.com to rsvp as reservations are required.  Light refreshments will be provided and seating is limited.
  • The very next morning, Friday, March 22, you'll be able to find me and several other representatives of our firm at the Manatee Convention Center in Palmetto.   We'll have a booth at the CA Day Trade Show & Educational Expo sponsored by the West Florida Chapter of the Community Associations Institute.  I'll be part of the "ask the lawyers" panel and will spend the rest of the day greeting ROC members that visit our booth.  This annual event is always fun and educational for everyone.

I hope to see you at River Forest Village on March 21 or the Manatee Convention Center on March 22!

February's ROC Seminar and the Community Association Festival

The first month of 2013 has been very busy and February promises more of the same:

As mentioned in one of my recent blog entries, we'll be presenting a seminar for board members of community associations on Friday morning, February 8th at Oakwood Manor in Sarasota.  If you're interested in attending and haven't already reserved your seat, please contact either Karen Midlam at kmidlam@lutzbobo.com or Kathy Sawdo at ksawdo@lutzbobo.com.

If you are a director or manager of a resident owned community in west central or southwest Florida, you will not want to miss the the 3rd Annual Community Association Festival.  This year's event is scheduled for Wednesday, February 20th, at the Venice Community Center.     Registration starts at 8:30 in the morning, with the presentations to begin at 9 a.m.   Continental Breakfast and a great barbecue lunch will be provided free of charge before the program ends at 1:30 p.m.  Everyone is encouraged to wear "wacky tacky" Hawaiian attire.  You'll have the opportunity to learn about insurance issues, get the perspective from the lender's side of the table, gain some insight about reserve studies, and spend some time with an attorney who will focus on topics that affect the particular type of community in which you reside, whether that's a condominium, cooperative, or subdivision. 

Again, there's no admission fee for this fun and informative event--and it's a great opportunity for managers and board members to network with their peers from neighboring communities.

If you're interested in attending the Festival, please call 941-809-2031 or email deanna@sleuthpt.com to register.

On a more sobering note, I've been following the stories about the residents of Paradise Park, a manufactured housing community in New Jersey that was devastated by Hurricane Sandy.   Let's keep the displaced residents of Paradise Park and all of the others affected by that storm in our thoughts as we thank our lucky stars for escaping the 2012 hurricane system with little or no damage.

I hope to see you in February!

A Busy Beginning to 2013

The last few weeks of 2012 were extremely busy and the beginning of 2013 promises more of the same.

Here is a list of the speaking engagements and seminars that we've scheduled for the next few weeks:

  • I'll be speaking at the monthly meeting of EPROC this Friday morning, January 11 at Emerald Pointe in Zephyrhills.  That meeting starts at 9 a.m.
  • On Monday morning, January 21, we'll be presenting one of our resident owned community seminars at Old Bridge Village in North Fort Myers for board members and managers of associations in Lee, Collier, and Charlotte Counties.
  • We'll be offering the same seminar for board members and managers of associations in the Sarasota County area at Oakwood Manor on Friday, February 8.

Our ROC seminars start at 10 a.m. and end between noon and 12:30.  There's no charge for the refreshments, information, and the opportunity to meet board members from other communities in your "neck of the woods."   Included in our seminar topics is a presentation called "What I learned in 2012" that promises to be both educational and very entertaining.  Of course, we'll save time for our traditional "open forum" to discuss topics of immediate concern to the seminar attendees.   Please contact Karen Midlam at kmidlam@lutzbobo.com or Kathy Sawdo at ksawdo@lutzbobo.com to rsvp for the January 21 or February 8 seminars.

In my next entry, I'll be posting information about a "must attend" event scheduled for February 20 at the Venice Community Center.

I hope your New Year is off to a great start!

 

 

A New ROC and Interesting Thoughts About Super Storm Sandy

Marty Pozgay, the President of Florida Community Services Group, recently emailed me with the exciting news that his company has helped another manufactured housing community join the ROC family.

On October 15, the residents of Orange Harbor in Fort Myers purchased their park.   Orange Harbor has 364 mobile home sites and 130 recreational vehicle sites and is located on the Intracoastal Waterway and the Orange River.  The purchase price was $36 million and the blanket mortgage financing was provided by Bank of America.

The unit owners' cooperative association that purchased the park is Orange Harbor Co-op, Inc. and the association's President is Sidney Toll.

Congratulations to the residents of Orange Harbor and welcome to the world of resident owned communities!

I just finished reading a blog entry by Bryan Norcross, who some of you may remember from his incredible reporting in Miami during Hurricane Andrew.   He's now one of the tropical weather experts with the Weather Channel and I hope you'll find this entry from his blog at The Weather Underground as entertaining and educational as I did--and that you'll pay close attention to his thoughts on hurricanes and insurance companies.

I'll be speaking at the Mid-Florida ROC meeting at Country Club Manor in Eustis on November 27 and then we'll get into our community association seminar schedule.  I promise to post information on our first set of seminars in the next week or so.  Please let me know if you have any topics you'd like us to cover during our seminar season.

Thanks and I'll look forward to seeing you during the next few months.

 

A Tale of Two Co-ops

I always enjoy sharing positive stories about resident owned communities and the August 22 column by Eric Ernst in the Sarasota Herald Tribune is a great example of cooperative living at its best.

Country Club Estates in Venice is in the midst of a very exciting project that will enhance and increase its value and desirability both on a short term and long term basis.   The unit owners' commitment to the future of Country Club Estates is indeed "good news for affordable housing in Venice."   Kudos to the board, the manager and all of the members of Country Club Estates!

So much for the good news.

Here's an incredible story from a recent edition of the New York Post, entitled "Co-op Brawl":

Apparently, the president of an apartment cooperative located on Fifth Avenue in New York was upset because the representatives of the estate that owned a penthouse apartment in the building did not accept her "low ball" offer to purchase the unit.  The president and her board then allegedly decided to sabotage an existing agreement to sell the penthouse for 27 million dollars by unilaterally deciding that the apartment's "prime selling point"--a private wrap-around terrace with city and Central Park views--can be used by everyone in the building to get onto a newly proposed roof deck.

Of course, a lawsuit has been filed by the sellers seeking 5 million dollars in damages and a court order declaring that the terrace (which is larger than the unit's interior living space) is private.

Not surprisingly, none of the lawyers involved in this ugly legal battle returned calls from the newspaper seeking comments.

Members of Florida cooperative or condominium associations should rest assured that neither the size nor the configuration of a condominium unit or a cooperative unit can be changed in any material way without the approval of the affected unit owner.

Now that we're well into the month of October, preparations for this season's set of seminars are under way and I'll be posting information within the next few weeks. 

I hope everyone had a safe and restful "off season" and look forward to seeing you soon!

ROCs and Real Estate Taxes

This morning's local edition of the Sarasota Herald Tribune featured a column by Eric Ernst with the headline "Tenants Will Pay for Higher Tax Bills".

Owners of real estate interests in Florida received their annual TRIM ("Truth in Millage") notices last month.  While a TRIM notice is not the actual real estate tax bill,  the notice lets an owner know what value the county appraiser places on his or her property.

In Sarasota County, there was an overall decrease of approximately one per cent in property values and most owners of real estate in Sarasota County may not see much of an increase (if any) in their tax bills this year.

However, mobile home owners who rent lots in Sarasota County's investor-owned manufactured housing communities may have to bear the brunt of real estate tax bills to be sent to their park owners that may be over sixty per cent more than last year's.

Here are the increases as shown in the TRIM notices for several of the investor-owned parks mentioned in the story:

  • One park in Venice showed an increase in estimated land value of almost 22 per cent per lot
  • Two others in Venice showed per lot increases of almost 55 and 66 per cent
  • The TRIM notice for a park in Sarasota increased the value for real estate tax purposes by almost 67 per cent

The article describes the rationale for the substantial increases in value of these parks and briefly discusses the difficulties that any park owner or home owner will face in appealing the property appraiser's decisions.

Members of resident-owned communities can take comfort in the following paragraph from this story:

"We're not talking about the parks in which residents own home and the land under them.  The value of these properties has mirrored that of single-family home in the eyes of the county appraiser."

My understanding is that at least one other county in our state has taken an approach with its TRIM notices this year similar to Sarasota County's.

Just one more reason for ROC members to be happy with their decision to be part of their community's "ownership group"!

I hope you enjoyed your Labor Day weekend and that you and you escaped our brush with Isaac with little or no damage.

 

 

Educational Opportunities for ROC Managers and Board Members in July

I was just asked to speak on Reasonable Accommodations Under the Fair Housing Act at two Community Association Workshops scheduled for this month in Southwest Florida.

Both events are free to all community association managers and board members and CAMs can receive CEU credits for both my presentation and other presentations.

The first workshop will be held on the morning of July 12 at the DiamondHead Beach Resort & Spa, which is located at 2000 Estero Boulevard on Fort Myers Beach.  Check-in is at 7:30, followed by breakfast at 8, and two CEU sessions beginning at 8:30.  In addition to my presentation,  Rose Bechard-Butman and Wendy Shaw from Allstate Resource Management will be speaking about Stormwater Systems--a timely topic given our recent experience with Debby.

The second workshop is set for July 17 on Marco Island at the Marco Presbyterian Church, located at 875 West Elkam Circle.   Check-in begins at 11:30, followed by lunch catered by Mango's Dockside Bistro at noon.  The CEU sessions will start at 12:30.   Florida Shores Bank will be instructing CAMs and board members on how associations can be financially prepared for hurricanes (again, always an important topic in Florida).   I'll speak on Fair Housing and one more CEU session may be added to this workshop. I'll let you know if and when that occurs.

If you live in or near Lee or Collier Counties, and you're a manager of board member in a resident owned community, I hope you'll take the opportunity to join us at one of these workshops. 

Please RSVP by contacting Mary Danitz at Florida Shores Bank by emailing her at mdanitz@FloridaShoresBank.com or calling her at (239) 265-9053.  Seating is limited so don't delay!

Have a safe and happy July 4th!

Update on Debby for Florida ROCs

As a follow up to last night's blog entry about Tropical Storm Debby,  Governor Scott has declared a state of emergency for Florida .

Again, managers, board members and residents of ROCs should follow any and all directives issued  by state or local authorities, including mandatory evacuation orders.

The National Hurricane Center's most recent advisory has the storm almost stationary in the Gulf of Mexico for the next few days with landfall not occurring until Friday or Saturday.

Warnings for severe thunderstorms and tornadoes have been issued by the National Weather Service throughout the day and it is anticipated that additional warnings will be forthcoming.

 

Reminders for ROCs from Tropical Storm Debby

I've spent most of the past two days following The Weather Channel and watching the water level in the retention pond behind our home continue to rise with each passing hour.  

While full-time Floridians like to joke that hurricane season doesn't start in our neck of the woods until late July or August, Tropical Storm Debby has made it clear that there's an exception to every "rule."

If you've been following Debby, you know that this storm has confounded both weather experts and computer models.  As of this Sunday evening, Debby's center was located in the Gulf of Mexico about 270 miles from Sarasota.  Debby appears to be stationary at this hour and, although it's "only" a tropical storm with sustained winds of 60 miles per hour, Debby's caused at least one death (in Lake Placid in Highlands County) and substantial damage throughout the state.

Tropical Storm Debby highlights some very important reminders for ROC managers, board members, and homeowners:

  •   It's imperative that we not let our guard down.   Last night at this time, the National Hurricane Center's official storm track had Debby headed west toward Texas.   Predicting both track and intensity of tropical storm systems is extremely difficult and complex and conditions (and a storm's path and intensity) can change drastically in a few hours.   There are numerous sites, including the National Hurricane Center's Tropical Prediction Center and Weather Underground, that can provide current information.
  •   While Tropical Storms are not as "powerful" as hurricanes, they can still pack quite a punch.  We've had numerous tornadoes in Florida today, at least one older bridge has been partially washed away, the Sunshine Skyway Bridge was closed for part of the day, and many coastal areas have suffered substantial beach erosion--all of this from a tropical storm well offshore in the Gulf of Mexico. 
  •  It's also important not to focus solely on a tropical system's path, or the National Hurricane Center's "cone".  Debby has spun off storms and tornadoes as well as pounding wave action throughout the day which have severely impacted communities throughout Florida--many of which are hundreds of miles away from Debby's projected track.
  •   Finally, tropical storms and hurricanes are deadly serious events--not opportunities to appear on television (for example, the "surfers" that choose to take their boards into waters when riptide warnings are issued or the "thrill seekers" that feel the need to drive through flooded streets).   When a ROC is threatened by a tropical storm or hurricane, every resident must be prepared to follow the directives of state and local authorities--including a mandatory evacuation order.   As I've mentioned in other entries, "mandatory" means just that.  The failure or refusal to obey a mandatory evacuation order violates state law, and, unless the community's clubhouse is a certified shelter, a resident cannot and should not simply "camp out" in that clubhouse when the evacuation order is issued.

This is the earliest date that we've had a fourth named tropical system in the Atlantic.  Whether or not this signals an extremely active hurricane season this year is unclear.  What is clear is that knowledge, preparation, and common sense in dealing with tropical storms and hurricanes can help spell the difference for ROC managers, board members, and homeowners.

Let's hope that Debby is our only tropical "visitor" this season--but let's be ready just in case!!

FEMA's Flood Insurance Decision Hurts ROCs

Yesterday's edition of the South Florida Sun-Sentinel featured a column by Donna DiMaggio Berger, the executive director of the Community Advocacy Network and a partner in the Katzman, Garfinkel and Berger law firm.

In what Ms. Berger calls an "unprecedented move,"  The Federal Emergency Management Agency  recently announced that it would end a six year old program that allowed agents writing national flood insurance policies to rebate a portion of their commission to their customers.

Ms. Berger notes that these rebates have been allowed by statute in Florida since 1996 and correctly questions why, in the midst of difficult economic times, FEMA has chosen to "effectively take millions of dollars in flood-insurance savings" out of the pockets of Florida homeowners and the communities in which they reside.

According to Ms. Berger, over two million flood insurance policies are written in Florida.  Most of those policies cover homes in flood prone areas such as our coastline and the counties south of Lake Okeechobee, where more than eight million of us live.

The column includes a link to a petition urging FEMA to reconsider and reverse its decision before October 1 of this year, which is the date that the rebate program is scheduled to end.

With our hurricane season just beginning to brew, I'd suggest that NOW would be a very good time to sign this petition.

Please forward this entry and the link to the petition to your neighbors and other homeowners in your communities.

ADA Pool Accessibility FAQs and An ABA Forum

Carol Grondzik,one of my colleagues in our firm's Tallahassee office, just forwarded a link that answers many frequently asked questions about the pool accessibility requirements of the Americans with Disabilities Act.   As I mentioned in one of my earlier blog entries this year, those requirements were set to go into effect in March but have been delayed until at least May 21.  I hope the followers of my blog find this link helpful and informative.  As always, I suggest that ROC managers and board members obtain professional guidance in determining whether their community's facilities must comply with any of these accessibility requirements and if so what type of equipment will satisfy the ADA standards.

I'm very excited to be spending a few days later this month in Washington, DC at the American Bar Association's Forum on Affordable Housing and Community Development Law.  I've been invited to be one of the panelists speaking about Cooperatives as a Tool for Housing and Social Enterprise.  I'll also have the opportunity to attend workshops and seminars on Fair Housing and other issues affecting resident owned communities.  The Forum is being held from May 23 through May 25 and I'm sure I'll be posting entries on this event on my return.

 

 

 

 

ROCs and Fair Housing "Testers"

As many of my readers know, among the topics frequently discussed on this blog are the many issues facing resident owned communities when dealing with the Fair Housing Act.

I've recently been speaking to community association managers and ROC board members about the importance of properly responding to and evaluating requests made by current or prospective residents for reasonable accommodations such as pets or caregivers.

I always begin my presentation with a brief history of the Fair Housing Act and its roots in the Civil Rights movement and the legislation that movement inspired--legislation enacted with the goal of eliminating unlawful discrimination on the basis of characteristics such as race, religion, or disability,

It appears that there is still much to be done before that goal is met.  Last Thursday's Sarasota Herald Tribune reported that housing discrimination is still occurring in Sarasota County.   Investigators found numerous instances of discrimination against minorities and persons with disabilities in Sarasota, Venice, and North Port as well as in the unincorporated areas of Sarasota County.

The article notes that the investigation was conducted, at least in part, by "testers" posing as as persons seeking housing or financing to help purchase homes.

We've been cautioning ROCs for some time  that these "testers" would eventually turn their attention to other areas of our state after focusing on the larger cities on Florida's east coast and the Orlando area.  

Managers and board members in resident owned communities clearly have yet another reason to comply with the Fair Housing Laws.

 

 

ROCs and the Trayvon MartinTragedy

I wanted to post two recent  articles related to the death of Trayvon Martin.

The first discusses the potential liability facing the Retreat at Twin Lakes Homeowners' Association as Trayvon was apparently shot and killed by a member of that  association's "neighborhood watch" group.

The second release was published by the Community Associations Institute in response to this incident and contains much useful information.

I hope that any community association that has a "neighborhood watch" program or is considering starting a "neighborhood watch" group takes the time to review and carefully digest these two articles and would strongly suggest that ROC managers and board members consult with their attorneys and insurance professionals as part of their decision-making process.

Great Educational Opportunity for Southwest Florida ROCs on March 27

I want to remind all of my blog readers that the PM-EXPO Trade Show is scheduled for Tuesday, March 27, at the Charlotte County Convention Center. 

This will be a day packed with fun and information with presentations on a number of very interesting topics. 

Here's the link to the home page for the Trade Show:  www.pm-expo.com/sw-florida/

Admission at the Trade Show is free and so are the presentations, including my presentation that afternoon on dealing with Reasonable Accommodation Requests under the Fair Housing Act.

I hope to see many of our friends from the Southwest Florida at the Trade Show this Tuesday!

ADA Pool Accessibility Deadline Extended for at Least 60 Days

A set of new regulations created in 2010 under the Americans with Disabilities Act was scheduled to go into effect on March 15, 2012.  Late last week, the deadline for compliance with these regulations was extended for 60 days with the possibility of an additional extension of time to allow for clarification and further discussion of the impact and manner of implementing and complying with these rules.

A portion of these rules created no small amount of uncertainty for ROCs with community pools as these new regulations seemed to require that any "public pool" have at least one (and in some cases two) means of accessibility for persons with physical disabilities. 

What exactly constitutes a "public pool"? 

I'm comfortable with advising the board or manager of a ROC that allows only its residents or the family, tenants, or invited guests to use the pool that the community pool is "residential" or "private" rather than public.

However, pools in communities that host swimming meets open to the public, or communities that are partially or entirely designed for short term occupancy by recreational vehicle owners would appear to fall within the "public" arena and these new accessibility rules would seem to apply. 

I've spoken with several communities that don't know whether or not their pools are "private" or "public" and others that aren't sure of the type of accessibility equipment required and we're hopeful that the additional time will provide all of us with the answers needed to determine whether a community needs to bring its pool into compliance with these new accessibility standards and, if so, what equipment will be allowed to meets these standards.

For now, at least, ROCs that need to comply will have some additional time to do so.

Stay tuned and I hope to see some of you at the Expo in Charlotte County on March 27th!

 

The Fate of HB 319 and SB 680 and Continued Confusion for ROCs

Florida's state senators and representatives have concluded their 2012 legislative session in Tallahassee.

While House Bill 319 was overwhelmingly approved, Senate Bill 680--the companion to HB 319--never came before the Senate for a vote, thus effectively preventing either of these bills from becoming law.

Whether the failure of either bill to make its way out of this legislative session is good or bad is a matter of opinion

However, managers and board members in cooperatives should be reminded that, at least for the immediate future, the "status quo" will continue--as will important differences between Florida's statutes governing cooperative associations and those provisions governing condominium associations (and in many cases, the statutes governing mandatory homeowners associations), including the following:

Newly elected or appointed board members in cooperatives are still not subject to the certification/education requirement found in Chapter 718.

The statutes governing cooperative associations continue to have no "safe harbor" provisions for first mortgagees that take title to a unit through foreclosure or assignment in lieu of foreclosure.

Finally, certain privacy protections recently afforded to owners and employees in condominiums and mandatory homeowners associations were once again not extended to members of cooperative associations and the employees in cooperative communities.

I suspect we'll be discussing these issues again at the same time next year.  

If you're attending the PM-EXPO on March 27 at the Charlotte County Harbor Event & Conference Center in Punta Gorda, please stop by our booth and say hello to us!

 

 

Indianwood Golf & Country Club Joins the ROC Family

On February 28 of this year, residents of Indianwood Golf & Country Club purchased their community, with the assistance of Marty Pozgay's Florida Community Services Group.

Indianwood is a 596 space manufactured housing community located in Indiantown, which is located in Martin County, west of Stuart and southeast of Okeechobee.  All but 10 of the spaces are currently occupied, and there is an 18 hole par 70 golf course with a pro shop and restaurant.

The resident-owned cooperative association, Indianwood Co-op, Inc., was the purchaser of the community and the sales price was $30,000,000.   Financing was provided by Bank of America.

The President of Indianwood Co-op, Inc. is Karlee Shostrom and she and all of the new owners of Indianwood Golf & Country Club are to be congratulated on this exciting accomplishment.

We're very pleased to welcome Indianwood to the ROC family and look forward to hearing more about the newest resident owned community in Florida!

I hope to see some of my blog followers at the Manatee Convention Center in Palmetto on March 8 for the always educational and fun Community Association Day and on March 27 at the Charlotte Harbor Conference Center for the Community Association Trade Show planned by PM-EXPO.   I'll be part of a panel of community association attorneys for CA Day and will be speaking about Reasonable Accommodations and the Fair Housing Act at the Charlotte County event.

 

 

 

An Update on the Update--Meanwhile, Over in the Senate

Last night's blog entry focused on the most recent version of House Bill 319 and specifically on two revisions--the addition of the "safe harbor" provisions found in Chapters 718 and 720 of the Florida Statutes to F.S. Section 719.108 and the removal of the "certification/education" requirement for newly elected or appointed board members in cooperative associations.

I just checked the Florida Senate's website for the most recent version of SB 680, which is the "companion bill" to HB 319 currently making its way through the Senate's committees in Tallahassee.

Will any followers of this blog be surprised to learn that the current version of SB 680:

Does not add "safe harbor" provisions to F.S. 719.108 and

Includes the "certification/education" requirement for newly elected or appointed board members in cooperatives?

As I posted last night, stay tuned...

An Update on House Bill 319 and Cooperatives

As most of the followers of this blog know, Florida's legislature is currently in session in Tallahassee.

The bill that may be of most interest to community association managers, homeowners, and those of us that provide legal assistance and advice to ROCs--House Bill 319--has been making its way through the various legislative committees.

The latest version of this bill--as of the close of business on Monday, February 27--has two very interesting "tweaks" that will impact cooperatives:

First, there is now an amendment to Florida Statute Section 719.108 that will extend the "safe harbor" provisions found in the condominium association and mandatory homeowners' association laws to cooperative associations.  These "safe harbor" provisions will limit the liability of a first mortgagee or its successors or assignees who acquire title to a cooperative unit by either foreclosure or by deed (or assignment?) in lieu of foreclosure for the unpaid assessments that became due before the mortgagee's acquisition of title to the lesser of:

  1. the unit's unpaid common expenses and regular periodic or special assessments which accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association, or
  2. one percent of the original mortgage debt.

There's been a good deal of controversy and discussion about whether this "safe harbor" prevents an association from trying to recover from the mortgagee other costs and expenses, such as amounts charged the association by law firms or other companies trying to collect the unpaid amounts from the delinquent unit owner.  Cooperative associations have, for the most part, not been involved in this battle as no "safe harbor" provisions existed in the statutes governing cooperatives.  

A very curious revision in the most recent version of 319 is the removal of the requirement that newly elected or appointed members of the board of directors of cooperative associations either:

  • sign a document certifying that they have read the association's governing documents and will faithfully abide by those documents and his or her fiduciary responsibilities to the association in serving on the board or
  • attend and successfully complete a board member certification course that has been approved by Florida's Department of Business and Professional Regulation.

This requirement was incorporated into Chapter 718, which governs condominium associations, several years ago and was in the first version of HB 319 that I reviewed a few months ago.  I'm not sure exactly why this latest version of House Bill 319 no longer contains this requirement.

In any event, there's much more to HB 319, and I'll continue to post entries on its progress.

Stay tuned...

 

Beware of the "Service Dog Scam"

It's no secret that the Fair Housing Act prohibits housing providers from discriminating against individuals with disabilities.   An community association thus must make a "reasonable accommodation" to a disabled current or prospective resident who requires that accommodation to "use and enjoy a dwelling".

We've recently been contacted about homeowners in resident owned communities claiming that their animals are "service animals".   One association is currently dealing with a unit owner who had previously been allowed to have a dog in her home as a reasonable accommodation even though this ROC was a "no pet" community.   This unit owner apparently has replaced that dog with another dog and is alleging that this new dog is a "service dog," and can be walked throughout the community, even though the reasonable accommodation granted to the unit owner was conditioned on the dog remaining on the unit owner's lot while in the community.

The unit owner provided the manager with "Service Dog Paper Work" that included an "identification card" for the pet stating "I'm a Service Dog In accordance with the Americans with Disabilities Act of 1990".  Another card identified the dog by name, date of birth, registration number, and "handler" (identified by the unit owner's last name).

Becoming a "service animal" requires much more than a few papers, cards, or other items provided by companies gladly accepting the $150 (or more) from pet owners who want to "identify their canine helper" as a "service dog".

Here's what the U.S. Department of Justice has to say about "service animals" as defined by the Americans with Disabilities Act:

  • Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities--miniature horses are the only other animals that can qualify as "service animals"
  • Service animals are working animals, not pets
  • The work or task a dog has been trained to perform must be directly related to the person's disability
  • Finally, dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the Americans with Disabilities Act

In other words, the documents provided by these companies do not--without more evidence--prove that a pet qualifies as a "service animal".

Florida Statute Section 413.08 defines "service animal" and does not specifically prohibit species other than dogs or miniature ponies from qualifying as "service animals" but does require that the animal be trained to perform tasks for individuals with a disability and also specifies that a service animal is not a pet.

We've determined that the company that provided this unit owner with the "service animal certification kit" for her pet was not affiliated with the U.S. Department of Justice or any governmental agency charged with enforcing the provisions of the Americans with Disabilities Act. 

Any association confronted with these "service animal" papers should contact its attorney immediately--and any unit owner that has paid for these documents should strongly consider contacting the Federal Trade Commission.

I'd like to hear from other communities that have been confronted with these "service dog" certification papers.

 

ROCs and the Komen/Planned Parenthood Controversy

Followers of this blog know that I frequently caution that almost all board meetings in resident owned communities must be properly noticed and open to association members.  There are specific provisions prohibiting board members from meeting "behind closed doors" in the statutes governing condominium associations, cooperative associations, and mandatory homeowners associations.

While it's clear that these statutory provisions focus on ensuring that association members are provided with adequate notice of matters that are to be considered by the board of directors, there's another very important consideration that can be illustrated by the recent difficulties faced by Susan G. Komen  For the Cure after its decision to no longer offer grants to Planned Parenthood for mammograms was made public.

From what I've read about the initial decision, there was little if any input requested from or given by  the many local organizations that help fund. Komen .  In fact, it appears that some of Komen's board members were unaware of the decision--which had been made in the latter part of 2011

As everyone knows, once Komen's decision became public, a firestorm of negative publicity erupted--and even though Komen apparently reversed its decision shortly after the media picked up on the story, I have to believe that most of us will no longer view Komen in quite the same way as we did before all of this occurred.

My assumption is that no law prevented Komen's leadership from meeting "behind closed doors" when it concluded that the grants to Planned Parenthood be discontinued.   When a board is allowed to isolate itself from its members it's all too easy--and unfortunately all too common--to make decisions in a vacuum that prevents any factors or considerations other than those of the board members from being heard..  If one or two of those board members are particularly overbearing, it's not too much of a stretch to see how a ROC board could find itself regretting a decision made "behind closed doors" once that decision is made public and legitimate concerns of the members are finally heard.

This is a very important "side effect"  of the laws requiring open board meetings and member input at those meetings--no "vacuum" can exist if those laws are followed.   Every resident owned community benefits when decisions are made only after the members have been given the opportunity to have their say.  

I wonder if Komen's leadership wishes it had given its supporters that opportunity before making its initial decision on the grants to Planned Parenthood

A Few Tasty Tidbits for the Holidays

Based on the responses I've received from my recent blog entries and presentations on  fines and suspensions of use rights, it's clear that these topics are "hot issues" in resident owned communities throughout Florida.

Although the Florida Statutes governing condominium, cooperative and mandatory homeowners associations all recognize an association's power to fine or suspend use rights of unit owners or parcel owners (or their tenants or guests), I'd suggest ROCs consider the costs and benefits of instituting these procedures.   Board members in community associations should weigh numerous factors when considering whether to use fines and suspensions, including the following:

Do the association's members want to give any of their neighbors the power to fine them or suspend their rights to use the common facilities?  I've been in several communities where the membership has clearly and convincingly expressed the concern that a member may be fined solely because of a grudge or other "agenda" of one of his or her neighbors that happens to serve on that fining or suspension committee.    Regardless of the type of safeguards that an association tries to build into its rules or policies governing the operation of that committee, many residents simply don't want to give any of their neighbors the power to assess fines against them that may reach $1000.

And what about the homeowners in a resident owned manufactured housing cooperative or condominium that are not shareholders in the cooperative or condominium association?   Those homeowners are not "unit owners" under Chapter 718 or 719 of the Florida Statutes and are thus not governed by the fining and suspension provisions of those Chapters.   Their responsibilities are governed by Chapter 723 of the Florida Statutes and the rental prospectus.  It's doubtful that many rental prospectuses allow the park owner (in this case, the cooperative or condominium association) to fine a non-shareholder homeowner or suspend his or her use rights--and even more doubtful that any such provision in a rental prospectus would be deemed legal and enforceable under current Florida law.    How does an association's board of directors justify a situation where the non-shareholders (who are not subject to fines or suspension of use rights) are treated more favorably than the shareholders?    I can certainly see that situation creating a great deal of controversy and making it more difficult for the association to market and sell membership shares in the cooperative, or units in the condominium, to prospective purchasers.

Those are just two points to consider when deciding if a community should institute or maintain a fining and/or suspension procedure.

Remember--just because a community is allowed to have a fining and suspension committee doesn't mean that the community must have one.

Finally, for those long time followers that recall my entries on the "music police," here's a link to a story that appeared this week in the Sarasota Herald-Tribune on a federal lawsuit filed by our friends at Broadcast Music Inc. against a tavern in the Manatee county community of Ellenton. 

And on that cheery note, my best wishes to everyone for a very happy and healthy holiday season!

Some Thoughts on a Solemn Day

I was born over a decade after the "day that will live in infamy" but it's still hard to believe that seventy years have passed since the attack on Pearl Harbor.  

I've been to Hawaii twice and on both occasions (once with my then young children) have visited the Memorial.   The power and emotional impact of the Memorial and its surroundings cannot be described.   Sites such as Pearl Harbor and the beaches at Normandy instruct all of us in ways that mere words cannot about the sacrifices made by countless young men and women to protect the freedoms we all too often take for granted.

I've opened my most recent seminars with a summary of a very unsettling story that recently appeared on "Sixty Minutes" about families that were forced to live in cars and trucks because they could not afford any other type of shelter.   That the families featured in this report lived in the Orlando area was even more distressing.

I'll have yet another upsetting article to discuss at this month's remaining seminars:  a report that over 4,500 homes owned by members of our military may have been illegally foreclosed.   I hope that this story does not get buried and becomes a primary concern of our legislators and the agencies that we entrust to protect the rights of those that serve to defend our liberty.  

Jody Gabel and I have filed numerous eviction or foreclosure actions for the community association we represent and have always taken great care to follow the provisions of the Servicemembers Civil Relief Act.    That includes verifying whether or not the homeowners against whom eviction or foreclosure is being sought are currently serving in our military.

Our country's Supreme Court has stated that this Act must be read with "an eye friendly to those who dropped their affairs to answer their country's call."

Given the tremendous price that our servicemen and women pay every day on our behalf and the growing number of homeless families in our country, ensuring that the homes of our fellow citizens serving in the military are protected from wrongful foreclosures and evictions seems to be the least that we can do.  

I hope to see many of you at our seminar tomorrow at Venice Isle Estates, next Wednesday at Westwinds in Bradenton, or at my presentation at the SWFROC meeting at Tamiami Village in North Fort Myers on December 21.

Felines, Muscovies and Bears--OH MY!

Lindsay S. Smith, an attorney in the Denver office of Winzenburg, Leff, Purvis and Payne, recently posted a great entry on her firm's Colorado Home Owners Association Law blog.  As you'll see from her article, Florida ROCs aren't the only ones with residents that take it upon themselves to "befriend" and feed wild animals--in this case,stray and feral cats.  Unfortunately for the homeowners in this particular community, its association had allowed the resident to feed these feral cats for a number of years before filing a lawsuit against that resident--and, because of the association's delay in taking action, the court held that the association could not stop the offending homeowner from continuing to feed these animals.

I read Ms. Smith's entry several days before my colleague Bill Korp and I had lunch with the managers of two of the ROCs we represent in southwest Florida.  I was thinking about her article when I asked the managers whether there were any problems with wild animals in their communities. 

Each manager had a tale to tell:

  • Muscovy Ducks had made themselves at home in one manager's community in Lee County and the members of this ROC were struggling with how best to deal with these feathered interlopers.  I did some internet research when I returned to the office and found that Lee County has a web page devoted to Muscovies.   I would not be surprised if at least a few other counties in our state have similar websites.
  • Ducks are one thing--but the black bear that was captured in the other manager's community in East Naples was quite another.  It's worth following this link to read the news article (which has a picture of the bear).   The story doesn't end with the bear's removal from the community.   The manager told us that, even though the bear was relocated to a state park, it made its way back to his community.  The bear was last seen in this ROC in late July and has obviously caused more than a bit of unwelcome excitement for this manager and the homeowners.

As if managers and board members needed any more reasons to tell homeowners and their guests:  "Please, don't feed the animals!"

Let's hope that wild beasts and hurricanes stay far away from our ROCs this year!

 

 

 

House Bill 1195 and Cooperative Associations (Part II)

My most recent entry summarized the some of the changes made by House Bill 1195 (which became effective on July 1 of this year) to several provisions of the laws governing cooperative associations in Florida.

House Bill 1195 created three new subsections to Florida Statute Section 719.303 that have the effect of extending to cooperative associations the same enforcement tools that have been given to condominium associations and mandatory homeowners associations in our state.

New Florida Statute Section 719.303(4) allows the association to suspend the right of a unit owner or that owner's occupant, licensee, or invitee to use common elements, common facilities, or any other association property until a monetary obligation is paid in full, subject to the following conditions:

  • The unit owner must be more than 90 days delinquent in paying that monetary obligation
  • The right to use limited common elements intended to be used only by that unit, common elements needed to access that unit, utility services provided to the unit, parking spaces, or elevators cannot be suspended under F.S. Section 719.303(4)

Cooperative associations are given the right to suspend the voting rights of a unit or member under  Florida Statute Section 719.303(5).   This new subsection provides that:

  • The suspension is based on nonpayment of any monetary obligation due to the association which is more than 90 days delinquent
  • A voting interest or consent right which has been suspended may not be counted towards the total number of voting interests for any purpose, including, but not limited to, the number of voting interests needed to establish a quorum, the number of voting interests required to conduct an election, or the number of voting interests needed to approve an action under Chapter 719 or the association's governing documents
  • The suspension ends upon payment in full of all obligations currently due or overdue to the association

The suspensions imposed under these to new subsections are not subject to the notice and hearing requirements of F.S. Section 719.303(3).  Instead, the following requirements are provided in new Florida Statute Section 719.303(6):

  • The suspensions must be approved by the association's board of directors at a properly noticed board meeting
  • Upon approval, the association must notify the unit owner, and, if applicable, the unit's occupant, licensee, or invitee of the suspension by mail or hand delivery.

It will be interesting to see whether these new provisions encourage unit owners to pay amounts owed to cooperative associations.  I'll look forward to hearing from my blog followers that are members of cooperatives about this in the coming months.

 

 

 

House Bill 1195 and Cooperative Associatons (Part I)

On June 21, Florida's Governor approved House Bill 1195.  The provisions contained in this legislation became effective on July 1, 2011.

HB 1195 was considered by many to be a "glitch bill" aimed a correcting oversights in laws passed in recent sessions of Florida's legislature.  However, HB 1195 does not expand the categories of "protected official records" in Florida Statute Section 719.104 to match those that were included in the 2010 amendments to F.S. Section 718.111(12)(c) and F.S. Section 720.303(5).   For whatever the reason, certain documents that are clearly "off limits" to unit owners in condominium associations and mandatory homeowners associations will continue to be accessible to a unit owner in a cooperative association that makes a proper request to inspect and copy them.  I've covered this topic in a previous entry in this blog and it's clear that cooperative associations have another year of uncertainty in dealing with requests to inspect and copy these "sensitive" official records.

However, HB 1195 did amend Florida Statute Section 719.303(3) to provide that::

  • A cooperative association may now levy reasonable fines for the failure of the occupant of a unit (even if that occupant is not the unit owner) to comply with the association's "reasonable"  rules or any provision of the documents governing the cooperative.   The fine may not become a lien on the unit, may be levied on the basis of each day of a "continuing violation," and cannot exceed $100 per violation or $1000 total.
  • In addition, a cooperative association can now suspend, for a reasonable period of time, the right of a unit owner, or unit owner's tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with the association's "reasonable" rules or any provision of the cooperative documents.
  • The cooperative association must give the unit owner (and, if applicable, the unit owner's licensee or invitee) reasonable notice and an opportunity for a hearing before a committee of unit owners and the committee must agree with the fine or suspension in order for the fine or suspension to be imposed. 

We'll discuss some  additional enforcement tools extended to cooperative associations through HB 1195 in my next entry.

 

 

ROCs and WiFi: A New Danger Zone?

I was contacted earlier today by a manager whose association had installed a "wifi" system in the community's clubhouse that would allow residents and their guests to bring their laptops and other mobile devices into the clubhouse and connect to the internet.   A password would be needed to use the wifi system but this password would be given to any resident or guest that requested it.

The manager forwarded me a very recent blog entry from my colleague, Lisa Magill, from the Becker Poliakoff law firm, that raised the issue of whether a community association could be  liable if the wifi connection offered to its residents and guests was used to illegally download content.   Lisa's entry contained links to several articles, including a report on litigation being filed against thousands of persons for allegedly downloading pornographic movies illegally.

Regular readers of this blog may recall my discussions of how ROCs could potentially violate copyright laws by playing music or showing movies at community events and it appears that associations that offer wifi or other internet services to residents and guests may be entering the same dangerous waters.

While the safest course of action would be for an association to remove the internet service (or not install it in the first place), perhaps there are some steps that ROCs can take to bring the risk of potential liability down to a level that might be acceptable to an association's board of directors:

  • The board of directors can pass a rule requiring that any residents and guests using the community's internet service do not commit any illegal activities
  • The board can also require that no resident or guest be given the password or otherwise be allowed to use the internet service unless and until he or she signs a document agreeing that he or she shall not use the system for any illegal purposes, including downloading any material illegally, and that any such illegal usage shall result in that resident or guest immediately and permanently forfeiting his or her privileges to use the internet service.   This agreement should also contain specific language stating that the resident or guest will indemnify the association for any and all costs, expenses, and damages that the association incurs or suffers as a result of that resident or guest using the service for any illegal purposes.  
  • The board should determine whether the resident or guest is required to click on an "I Agree" box prior to accessing the internet on his or her laptop.  If so, the board can have the requirements and agreements set forth in above two paragraphs included on that "sign in" page and the resident or guest will not be allowed to access the internet unless and until he or she clicks on that box.   I would still suggest having each resident and guest sign a "hard copy" of that agreement for the association's records and the association should maintain that document in a safe place.

Finally, each association should have a discussion with its insurer to determine whether the association's current policy would protect it in the event of a claim arising from the illegal use of its internet service by a resident or guest. 

We'll do our best to keep you advised of any further developments in this area.  

Fido, Foreclosures, and Florida versus the Feds

I'm posting the links to three recent articles for my blog readers:

  • The first story involves the efforts of a condominium association in Jupiter, Florida to use a dog's individual DNA to help identify canine offenders (and their owners) of the community's "pooper scooper" rules.
  •  The aggressive approach taken by a  homeowners' association in Pembroke Pines to collect delinquent maintenance and other fees--brought about in no small part by the foreclosure crisis--is the focus of the second article.
  • Finally, a very sobering report from the Palm Beach Post on the battle brewing between Florida's emergency managers and the Federal Emergency Management Agency as to whether every emergency shelter in the state is required to be in compliance with the Americans with Disabilities Act.   According to this article, the cost to bring each of the hundreds of emergency shelters in Florida into compliance with the ADA may exceed One Billion Dollars--and the last time I checked, our state doesn't have that kind of money in its cookie jar.

I hope you enjoy reading these three stories and look forward to your comments.

 

 

The Casey Anthony Verdict and Criminal Law 101

I have to assume that most of us that remain in Florida during the "off season" were not obsessed with the Casey Anthony trial.  

Nonetheless, almost immediately after the verdict, the social media (characterized by numerous comments on my Facebook page) was buzzing with outrage.   The mainstream media (which certainly contributed to the almost surreal and sensationalistic circus atmosphere that has surrounded this case for almost three years) quickly marched out its various "experts" to weigh in on the jury's decision and presented numerous "persons in the street" opinions for public consumption.

Almost lost among the emotional chatter are a few very important points that form the basis of our country's criminal justice system:

  • A defendant is innocent until proven guilty.  The defendant walks into the courtroom with a presumption that she did not commit the crimes with which she is charged. 
  • The State (represented by the prosecution) must establish the defendant's guilt and must do so "beyond a reasonable doubt".  This "burden of proof" is a very heavy burden--to use a sports analogy, the prosecution has to do much more than just carry the football across the 50 yard-line--that football has to get at least into the range of a "chip shot" field goal and the prosecution most probably has to put itself into a "1st and goal" position to meet that extremely high standard.
  • In addition, the fact that the defendant chooses not to testify at the trial on her behalf cannot be held against her by the jury in its deliberations.  Because the defendant is presumed innocent and the State has the burden of proving her guilty beyond a reasonable doubt, the defendant need not present any evidence at all if she (or her defense team) so chooses.

It's a credit to our legal system that criminal defendants are tried before a jury of their peers rather than in the "court of public opinion".   When all was said and done, Casey Anthony's fate rested in the hands of twelve individuals who were able to focus on the testimony and other evidence presented and were not subjected to the ceaseless barrage of opinion and speculation from every corner of the internet and mainstream media.

In the long run,  those jurors (and the alternate jurors) are the only "heroes" in this saga.  Regardless of what any of believe or think we "know" about the Anthony family and what really happened to Caylee Anthony, those jurors gave up several months of their lives for minimal compensation and undertook one of the most trying and important responsibilities that all American citizens share--and it was these twelve jurors, and not any "expert," or majority vote from the public at large, that decided whether the State had met its burden of proof on each of the various charges.  

Those of my blog readers that have served on a jury have an idea of the difficulties these jurors faced in making their determinations.   Each of these individuals deserves our gratitude for their commitment to our state and our criminal justice system.

We'll get back to ROC matters in my next blog entry.

 

 

Update on House Bill 849

One of my recent blog entries discussed House Bill 849, a welcome product of Florida's 2011 legislative session.  House Bill 849 created new Florida Statute Section 514.0315, which  gives pool owners the option of installing any of five different types of equipment in order to meet the requirements of the Virginia Graeme Baker Act.

The legislature forwarded this bill to Florida's Governor for approval and our Governor signed 849 into law on Friday, June 24.

The provisions of this new law  will become effective on July 1, 2011.

New Law May Help Manufactured Housing ROCs Deal With Code Violations

Earlier this month, Governor Scott signed into law Chapter 2011-105, the Committee Substitute for Senate Bill 650.

One of the highlights of this Senate Bill is the creation of a new section of Chapter 723, Florida's statutes governing mobile home park tenancies.

New Florida Statute Section 723.024--Compliance by mobile home park owners and mobile home owners--states as follows:

"Notwithstanding any other provision of this chapter or of any local law, ordinance, or code:

  • (1)  If a unit of local government finds that a violation of a local code or ordinance has occurred, the unit of local government shall cite the responsible party for the violation and enforce the citation under its local code and ordinance enforcement authority.
  • (2)  A lien, penalty, fine, or other administrative or civil proceeding may not be brought against a mobile home owner or mobile home for any duty or responsibility of the mobile home park owner under s. 723.022 or against a mobile home park owner for any duty or responsibility of the mobile home owner under s. 723.023."

Up until now, owners of manufactured housing communities (whether ROCs or third party investors) were often hesitant to contact local authorities to help remedy a home owner's violation of a local code or ordinance (for example, a health or building code violation) for fear that the local authorities would cite the park owner, rather than the home owner, for the violation.

This new law should eliminate that hesitancy in regards to home owners that are violating local codes or ordinances in resident owned manufactured housing communities. 

It's clear that this new provision will apply to mobile home owners that are not members of a cooperative, condominium or mandatory homeowners' association that owns or has the rights and responsibilities of enforcing the rules or covenants governing the community.  

I would also suggest that there are very strong arguments in favor of F.S 723.024 applying to those home owners that are members of the condominium, cooperative, or mandatory homeowners' association that operates the manufactured housing community.  It's apparent from the express language of this new section that it is the party that is actually violating the code or ordinance that should be held responsible for that violation.

That's a welcome clarification for managers and board members in manufactured housing community ROCs and will certainly assist in the enforcement of community rules and regulations.

F.S. 723.024 became effective on the day it was signed by our Governor--June 2, 2011.

Sawmill Resort and Campground Joins the ROC Family

Sawmill Resort and Campground is located near Dade City in Pasco County in west central Florida.   It's in a very rustic area with about 178 spaces for recreational vehicles, a number of existing cabins and camping sites, a general store, a recreational hall that doubles as a night club, and a pool and poolside bar and cafe'.

Earlier today, Sawmill became the latest resident-owned community in Florida as its homeowners association purchased the community after over nine months of hard work by a group of very dedicated individuals.

The price was $4,200,000 and the seller, TPG Campgrounds, LLC, was very capably represented by Attorney John Fenn Foster of the Foster & Fuchs firm in Jupiter, Florida.  The homeowners association financed the purchase with the welcome assistance of Jeff Campbell at Community Bank & Company, which loaned the association $2,940,00.00 and also helped a number of residents purchase membership shares in the cooperative that will be formed from the homeowners association.   The lender's legal counsel was Ryan Snyder of the Snyder Law Group.

Bill Gorman and his Lifestyle Choice Realty team guided the Sawmill residents through many twists and turns of this very challenging transaction.   The homeowners association was also greatly assisted by its surveyor, Bobby Simmons of Simmons & Beall, Inc.,  Bill Goulet of Environmental Assessments & Consulting, Inc., Sam Surratt from Lee Reed Insurance, and Bryan Tolli from Evergreen Insurance.

I'm happy to welcome Sawmill as a resident owned community and will be looking forward to getting back to regularly posting entries on my blog.  We've got lots to discuss!

 

 

Status Quo for CAMs and ROCs--For Now, At Least

Last week I posted an entry about attempts by some members of Florida's legislature to eliminate the  regulation of Community Association Managers as well as the Division of Florida Condominiums, Timeshares and Mobile Homes and (for good measure) end mandatory non-binding arbitration for certain disputes between owners and the associations governing their communities.

Proposed Committee Bill BCAS 11-01 moved quickly through the Business and Consumer Affairs Committee of Florida's House of Representatives and was then assigned a bill number, becoming House Bill (HB) 5005.   According to reports from Tallahassee, HB 5005 was being "fast tracked" and was destined to breeze through one or two other House committees. There was concern that HB 5005 would then join up with a companion Senate Bill and would be voted on and approved by both the House and the Senate before many of those most affected by this legislation would have been made aware of what was occurring in Florida's capital.

However, during the past week, HB 5005 somehow jumped off that "fast track".   Apparently, HB 5005 entered the Economic Affairs Committee of Florida's House of Representatives as a 280 plus page juggernaut and exited that committee as a much less imposing 63 page piece of legislation.

Substitute HB 5005 preserves the Division of Florida Condominiums, Timeshares and Mobile Homes as well as the mandatory non-binding arbitration program and maintains the laws providing for the regulation and licensing of Community Association Managers.

I would assume that our legislators heard from more than a few organizations over the past week or so (including the Federation of Mobile Home Owners and the Community Associations Institute).  I also have no doubt that a noticeable segment of the over three million residents of Florida ROCs made their feelings known to our representatives in Tallahassee.  

At least for now, HB 5005 is no longer a bitter pill for resident owned communities in Florida to swallow.  

A Few Presentations on the Horizon

We'll be presenting the last series of this season's ROC seminars during the end of March and the month of April. 

Our first two have been scheduled and here are the dates and locations:

  • Wednesday, March 30th at Piney Point in Ellenton
  • Friday, April 1st at Lake Bonnet Village in Avon Park

These events will start at 10 a.m. and we usually end around noon.  Two of the topics we'll be covering are "Top Ten Reasons to Update Your Community's Governing Documents" and "Reasonable Accommodations Under the Fair Housing Act".

We'll also provide you with legislative updates (which should be very interesting!) and leave time for our customary "open forum".

As always, attendance is free, as are the refreshments and you'll enjoy meeting and greeting fellow ROC residents.   Please rsvp by emailing Karen Midlam at kmidlam@lutzbobo.com, Kathy Sawdo at ksawdo@lutzbobo.com or me at sgordon@lutzbobo.com.

I'll also be speaking at the Mid-Florida ROC meeting on the morning of April 19th at Country Club Manor in Eustis.  I've had the pleasure of speaking at the most recent meetings of both the ROC Forum (last week at Four Seasons in Largo) and SWFROC (earlier this week at Carriage Village in North Ft. Myers) and also spoke about Advance Care Directives last week at Golf Lakes in Bradenton.  Thanks to all of those communities for their hospitality!

We're finalizing the dates and locations for seminars in Sarasota County and Lee and Collier Counties and I'll post them on the blog next week.

 

ROC Alert: Proposed Committee Bill 11-01

I've spent part of the past few days in email correspondence and telephone and person to person discussions about Proposed Committee Bill (PCB) BCAS 11-01 with fellow community association attorneys, ROC managers, and concerned board members.

As you may already know, earlier this week, the Business and Consumer Affairs Subcommittee of the Florida House of Representatives (by a 10 to 5 vote) passed PCB 11-01.  This bill will now be assigned a number and will be scheduled for additional committee hearings.   The concern is that this bill is on a fast track and will not have to undergo deliberations in more than one or two other House subcommittees and that, while no companion bill has been filed in the Florida Senate (at least as of earlier today), that Senate companion bill will be forthcoming in the very near future.

So what's the big deal about PCB 11-01?

How about these for starters--within this proposed bill's 281 pages, you'll find provisions that:

  • Eliminate many agencies that license and regulate numerous professions in Florida, including Community Association Managers
  • Eliminate what appears to be all or at least a substantial porton of the Department of Business and Professional Regulation's Division of Florida Condominiums, Timeshares, and Mobile Homes
  • Eliminate the mandatory non-binding arbitration provisions found in Florida's statutes governing condominium and cooperative associations

Please check out the full text of PCB 11-01 if you want to verify the incredibly far-reaching language that's now being considered by Florida's lawmakers.  

If you are a homeowner or condominium owner in a resident owned community, you might want to contact your state legislators about this bill.

I'll have another entry later this week.

 

 

 

Now This ROC has issues!!

I was just forwarded this article from last Saturday's Washington Post.   I'll let the story speak for itself and hope you enjoy reading it.  

Perhaps this cautionary tale should be prominently displayed on the bulletin boards in all of our resident-owned communities as an extreme example of what can happen when too many members decide that they don't have the time or desire to accept leadership responsibilities.

Have a great week and keep this community in mind the next time you want to complain about your ROC's problems!

 

 

Tropicana Joins the ROC family

I didn't want January to end without welcoming a new resident-owned community into the fold.

Just before 2010 came to a close, Tropicana Mobile Manor in Fort Myers was bought by an association of homeowners formed to purchase the park and convert it to a resident-owned cooperative, Tropicana Co-op, Inc.

Tropicana has 470 total spaces and the purchase price was $33,810,000.  More than 160 residents bought membership shares in the cooperative to help finance the purchase and Bank of America provided the blanket loan.

The closing occurred on December 17 and the residents were guided through the process by Marty Pozgay and his Florida Community Services Group.

Congratulations to the residents of Tropicana.  Welcome to the ROC family and we'll look forward to seeing your board members at future seminars and meetings of the Southwest Florida Resident Owned Communities.

As many of you know, between our seminars at Spring Creek Village in Bonita Springs, Venice Isle Estates in Venice, Skyway Village in Palmetto, my recent presentation for the Mid-Florida ROC meeting at Hawthorne in Leesburg, and attending several annual meetings, January has been incredibly busy and I have been asked many very interesting questions by attendees at these events.  I promise to discuss several of those questions on this blog during the next few weeks.

In the meantime, I want to thank all of the communities that hosted our presentations and also want to thank Skyway Village for inviting me to their open house for their beautifully renovated clubhouse and Windward Isles in Sarasota for allowing me to share in the celebration of their 25th anniversary of becoming a resident-owned community.

2011 is shaping up as a banner year for ROCs in Florida and we're glad that Tropicana has joined us!

A Plea for Civility

I'm surely not alone in trying to understand the tragedy that occurred just over a week ago in Tucson.   Regardless of one's political views, it's certainly worth considering the clear lack of civility and common courtesy that seems to be the rule rather than the exception throughout our country today.

Several days after the shootings in Arizona, I attended a meeting at one of the communities we represent in Southwest Florida and was saddened to observe a level of disrespect and rage that simply has no place in ROCs.   After the meeting, several residents mentioned to me that had I not attended, the meeting would have been disrupted by a number of unit owners.   Several other members approached me after the meeting and stated that I had been "duped" and hadn't heard the "other side" of the story.

As an attorney that represents many community associations, I've often had to explain to unit owners that we don't have "a dog in the fight".  In other words, my role is not to take sides on any particular issue being considered by a community--I may point out factors to an association's board of directors and membership that should be considered but assuming that the actions being discussed by the association do not violate any state, federal, or local laws, my job is to help ensure that the process that leads to the result is proper and legal.

Board members are volunteers and it's very troubling to attend unit owner meetings where residents fail to treat a director with even a minimal amount of courtesy and respect.    When a board member is shouted down or where his or her name is met with hisses or jeering, I find myself wondering what causes unit owners to demonize one of their neighbors and refuse to listen to any opinion other than their own?

How can a resident owned community survive if members no longer treat other members with simple courtesy and respect?   Does any resident want to live in a community where issues are allowed to fester and be fed by rumor mongering and unfounded criticism of the motives of board members until those issues explode?   Wouldn't that resident much rather live in a community where issues are resolved by civil discussion and debate?

Every member of a resident owned community has the right to attend almost every association meeting and can inspect numerous records of the association.  For example, Florida Statutes Sections 719.106 and 719.104 call for open cooperative association board meetings and access to a cooperative association's official records.

At the same time, every association member has an obligation to be fully informed about issues that come before the board, and to treat all board members--and all unit owners--with courtesy and respect.

In a month where we cope with the carnage in Tucson and commemorate the life and death of the Reverend Martin Luther King, Jr., I truly hope that we all rediscover the art of listening and treat each other with the civility that every one of us deserves.

 

 

A Few Tidbits to Welcome in the New Year

What better way to start 2011 than with an "op-ed" piece in the January 3 issue of The New York Times that undermines the idea that pets are beneficial to our health and happiness? 

"Fido's No Doctor. Neither is Whiskers." was written by Hal Herzog, a professor of psychology at Western Carolina University,  and I have a feeling that this article will generate some interesting discussions in communities throughout the country.  I'll probably be answering a few questions about Professor Herzog's arguments at our upcoming seminars.

And if you're already tired of dealing with pets and other issues facing ROC board members and managers this early in the new year, keep reminding yourselves that things could always be worse--as you'll see in this report and video from a television station in Houston, Texas.   Thanks to my colleague Janet Romano at Florida Shores Bank for forwarding this story about an embattled community and its apparently out of control HOA board.

Let's hope that all of our ROCs have a very peaceful, civil, and prosperous 2011.  We'll look forward to seeing you at one of our upcoming seminars!

 

A Busy ROC Seminar Schedule for January

I know everyone is busy preparing for the holidays but I wanted to post our January seminar schedule:

All of these seminars will start at 10 a.m. and will end between noon and 12:30 p.m

We'll be discussing requirements and procedures for properly and efficiently conducting meetings, issues involving swimming pools, and any proposed legislation making its way to Tallahassee for the 2011 lawmaking session that may impact resident owned communities in our state.

We'll conclude with our traditional "open forum" for questions and suggestions for future seminar topics.

As always, admission is free, refreshments will be served, and you'll have a great opportunity to mix and mingle with members of other ROCs in your area.

Please email Karen Midlam (kmidlam@lutzbobo.com), Kathy Sawdo (ksawdo@lutzbobo.com) or me (sgordon@lutzbobo.com) if you'd like to attend one of these events.  Just let us know which seminar and the number of residents from your community that will be attending.

I'll also be speaking at the Mid-Florida ROC meeting at Hawthorne  in Leesburg on the morning of Tuesday, January 25.

Our best wishes to you and yours for a very happy and healthy holiday season.   We're looking forward to seeing you in January!

Another Seminar Date and Another ROC Group

We've set the date and location of the seminar for the board members and managers of resident owned communities in the Lee, Collier, and Charlotte county area:

This event will start at 10 a.m. and end around noon.  Just like the other seminars posted in my last blog entry, admission is free and so are the refreshments and opportunities to mix and mingle with fellow ROC members.  

We'll be covering several very interesting topics at our December seminars:

  • Updates on dealing with pet and caregiver requests under the Fair Housing and Americans With Disabilities Acts
  • Privacy issues facing managers and board members in resident owned communities
  • Recent legislative changes to Florida's statutes governing ROCs
  • As always, attendees will have time for questions and comments.

Please send an email to Karen Midlam (kmidlam@lutzbobo.com), Kathy Sawdo (ksawdo@lutzbobo.com) or to me (sgordon@lutzbobo.com) if you'd like to attend any of our December seminars.   Let us know which event you'll be attending, the number of attendees from your community, and whether you'll need directions to the seminar.

We hope to see you in December at one of these seminars.

There's a ROC group that 's been formed in East Pasco County (EPROC) and I wanted to post the dates of their upcoming meetings:

  • November 19th
  • December 10th
  • January 14th
  • February 11th
  • March 11th
  • April 8th

If you're a member of a resident-owned community in that area and want more information, please send me an email and I'll point you in the right direction.  The EPROC meetings begin at 9 a.m. and the November meeting is at Betmar Acres.

EPROC is off to a great start and I look forward to speaking at that November 19th meeting.

December ROC seminar schedule and other important dates

We've scheduled three of the four seminars we'll be presenting in December for managers and board members in resident-owned communities. 

Here are the dates and locations:

I'll be posting the location of the seminar for our Lee and Collier communities and a brief description of the topics we'll be covering within the next few days.

These events will start at 10 a.m. and run until about noon.    Admission is free and so are the refreshments.  Our seminars are a great opportunity  to meet and discuss common issues with members of other ROCs in the area.

If you'd like to attend, please email me at sgordon@lutzbobo.com, Karen Midlam at kmidlam@lutzbobo.com, or Kathy Sawdo at ksawdo@lutzbobo.com.   Let us know which event you'll be attending, the number of members of your ROC that will be attending with you, and whether you need directions to the host community. 

We'll look forward to seeing you in December!

The Florida Resident Owned Communities website has a very helpful calendar that lists the upcoming meetings of the ROC groups serving Lake, Sumter and Orange Counties (Mid-Florida ROC), Southwest Florida (SWFROC), and Pinellas County (ROC Forum).   I hope you'll find that calendar useful and will bookmark it for future reference.

Enjoy this great weather and we'll see you next month!

Syndromes, Cellphones, and ROCs

I spent last Thursday and Friday in Fort Lauderdale attending the Thirty-Fifth Institute on Condominium and Cluster Developments presented by the University of Miami School of Law.  I'll be posting future blog entries about several of the topics covered at the Institute but wanted to draw your attention to two items that I think you'll find interesting:

  • Last week, I received an email from the Community Associations Institute that introduced me to a new term-- "HOA Syndrome" and a web site advertising a seminar in a suburb of  Las Vegas (no surprise there!) on how residents can recover monetary damages for the injuries inflicted upon them by community association boards.  You'll also find on that website a link to a paper by a Professor Gary Solomon that refers to this "HOA Syndrome" as "A Two-Tailed Psychiatric Disorder".  Let's just say that I was less than impressed with that paper but I'll look forward to your comments after you've taken a look at what Professor Solomon has to say and the HOA Syndrome site.
  • One of my colleagues, Ira Leesfield,wrote an article that appeared in the October 18th edition of the Miami Herald.   There are some very important issues raised in this article and I highly recommend that every ROC manager and board member strongly consider Mr. Leesfield's suggestion that community associations adopt and implement written policies that prohibit employees using cell phones or other mobile devices for work-related purposes while driving.

The first annual Dowd Whittaker Community Association Festival was lots of fun and a great success and I look forward to speaking at that event next year.  It was very nice to see all of the familiar faces and I hope the board members and managers of the ROCs we work with enjoyed the Festival as much as I did.   Thanks to everyone who attended and participated!

We're finalizing the dates and locations of our first set of this season's seminars and I hope to have that information on the blog by the week's end. 

 

 

Welcome Country Lakes to the ROC Family!

It's always a pleasure to welcome a new member into the family of resident owned communities.

On September 15, the resident purchase and conversion of the communities of Country Lakes I and II in Manatee County was completed. 

The proud owner of this 471 site community is Country Lakes Co-op, Inc.  Kudos to the residents that participated in the purchase effort and especially to Marty Pozgay and his Florida Community Services Group for helping the residents realize their dreams of ownership.

The HOA officers received the 45 day notice from the owner of Country Lakes I and II on June 28, 2010.  At that time, about seventy per cent of the homeowners had left those communities for their summer residences and Marty and the remaining thirty per cent were faced with the daunting task of raising six million dollars for an earnest money deposit (to be applied to the total purchase price of 32.2 million dollars) in a very short period of time.  

The blanket loan was provided byBank of America and individual share loans were provided by Patriot Bank andWhitney Bank.

Congratulations to the residents at Country Lakes and to everyone that helped Country Lake Co-op, Inc. become the newest ROC in Florida!

Those of you in the Sarasota, Manatee, and De Soto County area, please don't forget to rsyp for the upcoming Dowd Whittaker Community Association Festival on either October 19 or October 20.   John Dowd promises a morning of education and fun for all and I'll be one of the speakers--plus you'll get to see me in one of my flashiest Hawaiian shirts.

See you there!

Surprising Presidential Behavior and A Timely Article

Sometimes even I'm surprised by what can occur in a resident-owned community.

I recently received an email from one of the followers of my blog.  I've copied and pasted most of it below for your review and comment:

  • A resident-owned community quietly begins installing surveillance cameras in buildings and on common grounds. Some of the more "private" rooms also had cameras installed... the quiet little library and the small exercise room. No official notice was given to the residents that the cameras have been installed, or worse yet, that the cameras are now functioning. No signs have been installed stating that surveillance is happening.
  • At the last board meeting, residents learned that a computer monitor in the association office is taping all of the camera locations into a two year (?) memory system. At the same meeting, the residents were aghast to hear from the association president that he has been watching the residents, from all eight camera locations, on his own computer in ______________(note that I've intentionally deleted the President's home location here to protect the "innocent").  No one in the park had been officially notified that the cameras had been installed or were functioning before this time.

I'd love to hear what you think about this invasion of privacy and in particular your thoughts on exactly what laws (if any) have been broken.  In addition, do any of you believe that the members of the board as well as the association's President should have to answer to the membership?  It does not appear that the installation of these surveillance cameras was approved by the board at a properly noticed meeting open to all association members.  I'll look forward to the comments from my readers on this distressing situation.

Speaking of distressing situations, a recent column  by Eric Ernst in the Sarasota Herald-Tribune describes the plight of mobile home owners in an investor-owned community in Venice.   While the value of their homes may be decreasing, the value of the community in which these residents live (as mobile home owners on rented lots) appears to be increasing, at least in the eyes of the county's Property Appraiser.   Needless to say, many home owners in that community are not exactly thrilled with the Property Appraiser's evaluation.

I'll be posting news about another educational event for ROC board members in the next week or so as well as times, dates, and locations for our first set of the upcoming season's resident owned community seminars.   In the meantime, enjoy these first few weeks of college football!


 

Foreclosures, Flags and a Free Seminar

I just read two articles in the New York Times that I wanted to bring to the attention of the followers of my blog.

  • It's no surprise to anyone that Florida has been one of the states most heavily impacted by the foreclosure crisis.  The number of foreclosures continues to grow daily and our court system is struggling to find an answer to the increasing backlog of cases.   Gretchen Morgenson's and Geraldine Fabrikant's piece in the Business Day section of the September 4, 2010 of the Times is entitled "Florida's High-Speed Answer to a Foreclosure Mess" and paints a very distressing picture of the challenges we face in finding solutions to the problems created by the onslaught of foreclosure actions.   I think you'll find this a very eye-opening read.
  • There's a battle being fought in a resident-owned community in Arizona over a flag that a homeowner (a former board member!!) is flying on his roof.  It's a yellow 'Don't Tread on Me" banner that (coincidentally?) has been adopted by the current "Tea Party" movement.    Marc Lacey's piece appears in the August 30, 2010 edition of the Times and is entitled "Homeowner's Fight Involves Flag Tied to Tea Party".   I recommend this piece for all members of ROCs who might otherwise think that these disputes occur only in our fair state.

I'll be speaking at the First Annual Dowd, Whittaker & Associates Community Associates Community Association Festival at the Venice Community Center.   All Board members and managers of ROCs are invited to attend from 9 a.m. to noon on either October 19th or October 20th.   The event is free to all and there will be prizes, food, drinks and music.   The suggested attire is "your tackiest Hawaiian shirt."    You'll find the link to register for the event right here:  http://events.r20.constantcontact.com/register/event?oeidk=a07e30dxr1rce2238b3&llr=vdb8x9dab

I hope everyone had a safe and restful Labor Day weekend and that the rest of the hurricane season remains quiet in our neck of the woods.   I'll look forward to seeing many of you (in your most colorful Aloha shirts) at Venice Community Center on either October 19 or October 20!

A Follow-up on the Music Police

While we wait for newly formed Fiona to decide where she's headed, I thought I'd share an article by John Bowe from the August 8, 2010 edition of the New York Times Magazine that I read while spending a bit of time away from the office (even dedicated bloggers need a vacation now and then).

The timing of the article could not have been better given my recent entry on ASCAP, BMI and SESAC.   I hope you'll enjoy the read.

I'll be presenting a seminar for managers on Reasonable Accommodations under the Fair Housing Act following the September 1 breakfast meeting of the West Florida Chapter of the Community Associations Institute and hope to post some exciting news within the next week about another event where I'll be speaking in October. 

In the meantime, it's good to be home and let's all keep alert as it looks like Hurricane season has really heated up!

Stay safe!

Summer Reading for ROCs

While we're waiting for the next tropical system to form in the Atlantic (and as all Floridians know, hurricane season is just getting started), I thought I'd suggest a few articles for your reading pleasure:

  • In today's Sarasota Herald Tribune, a very interesting story on how several law firms in the state that have been characterized as "foreclosure mills" have drawn the attention of Florida's current attorney general.
  • An article from several weeks ago in the Herald Tribune about the attempts of owners of boats anchored in Sarasota Bay to create a "homeowners association".
  • very interesting column by Tom Lyons in the Herald Tribune about some real problems created by the revisions to the Florida Statutes that allow community associations to collect rent directly from a person renting a home or unit from an association member that is delinquent in his or her assessments, dues, and/or maintenance fees.  Mr. Lyons followed this column with an equally thought provoking entry in his blog--and the questions raised in both the column and the blog remain for the most part unanswered.

Finally, the August 2010 issue of the Florida Community Association Journal focuses on budgeting and financial issues and provides a wealth of helpful material for ROC managers and board members.  The articles may not be posted online yet but they are all well worth reading.

We'll be scheduling our first set of seminars for resident-owned communities for the 2010-2011 season in the next few weeks and will post that information on the blog.  In the meantime, I hope you enjoy your summer reading assignments!

ROCs Beware: The Music Police Are On the Prowl

The manager at one of the ROCs we represent recently sent me a "Performance License for RV Parks/Campgrounds" from a company called SESAC.   The manager wanted to know whether SESAC had the right to insist that the community obtain a license in order to play live or recorded songs in SESAC's music catalog at community events.

I know that several other communities (both with and without RV sections) have been contacted about the need to have a "performance license" to play music in the clubhouse or rec hall.   In addition, my friends at SWFROC suggested that other ROCs wanted to know more about these licenses. 

Federal copyright laws are based on the concept of property rights--and, in the case of songs and music, these laws view the songwriter's work (the creation of the song) and the publisher's work (the distribution of the song) as a "property".   In other words, the songwriter and publisher "own" the song and no one else can use the song without the permission of the songwriter and publisher.

There are three recognized "performing rights organizations" ("p.r.o.'s") that have been established to ensure that songwriters and music publishers are properly compensated when their songs are performed in public:  The American Society of Composers, Authors and Publishers ("ASCAP"), Broadcast Music, Inc. ("BMI") and the Society of European Stage Authors and Performers ("SESAC").   Basically, each of these organizations has compiled a huge catalog of music and protects the property rights of the creators and publishers of that music by collecting licensing fees from businesses that use any of that music and distributing those licensing fees as royalties to songwriters, composers, and music publishers in their catalog.

The "Frequently Asked Questions" section on ASCAP's website defines a "public performance" as a performance "that occurs either in a public place or any place where people gather (other than a small circle of a family or its social acquaintances)".  A "public performance" is also a performance "that is transmitted to the public" such as radio or television broadcasts, music-on-hold (yes, that means the music you have to endure while waiting for a real person to speak with you on the telephone), cable television, and by the internet.   

With a few very limited exceptions, any "public performance" requires the permission of the owner of the music or his or her representative--and that usually means ASCAP, BMI, or SESAC.

As far as the big three "p.r.o.'s" are concerned, any "public performance" of any music in their catalog that does not fall within these limited exceptions requires a license from that "p.r.o." and the failure to obtain that license is a violation of Federal copyright laws.

ASCAP, BMI, and SESAC will actively pursue businesses that violate these copyright laws.   For example, earlier this summer, ASCAP announced that it had filed 21 separate copyright infringement actions against nightclubs, bars and restaurants in 13 states.  Apparently, in each of these cases, the offending business either failed to obtain a license from ASCAP or had failed to pay the fees owed to maintain its license and publicly performed musical works of songwriters, composers, or music publishers in ASCAP's catalog.

The penalties for copyright infringement can be substantial--and in extreme cases may cost an offending business at least $100,000 in fines.   

In addition, having a license to play songs from the catalog of one "p.r.o." does not give a business the right to play songs from the catalogs of the other two "p.r.o.'s"--separate licenses will have to be obtained from those two "p.r.o.'s" to play songs from their catalogs.

Finally, a few other points to consider:

  • Purchasing sheet music or a record or CD does not authorize that purchaser to publicly perform that music--for example, by performing that music live or playing the record or CD at a community event in the ROC clubhouse.
  • ASCAP's "Frequently Asked Questions" section notes that some people "mistakenly assume that musicians and entertainers must obtain licenses to perform copyrighted music or that businesses where music is performed can shift their responsibility to musicians or entertainers."  According to the ASCAP site, the copyright laws say that "all who participate in, or are responsible for, performance of music" are legally responsible--in ASCAP's view, "since it is the business owner who obtains the ultimate benefit from the performance, it is the business owner who obtains the license.  Music license fees are one of the many costs of doing business."
  • Associations that have "movie nights" for their residents and guests should be aware that copyright protection also extends to movie producers and distributors

Obviously, ROC managers and board members have some important factors that must be considered when events involving music are held in the common areas of the community.   

I've just skimmed the surface of this topic but would hope that every ROC consults with its attorney when faced with these issues.

 

The Americans With Disabilities Act Twenty Years Later

 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.

The Oil Spill, Lending News and a Strange Board Decision

I've been hesitant in posting entries on the oil spill in the Gulf of Mexico as the media's coverage has been both numbing and overwhelming.   However, I read several articles over the July 4th weekend that I wanted to bring to the attention of my readers:

  • The Sarasota Herald-Tribune ran a lengthy story this weekend on how the local real estate market has been affected by the oil spill.   Even though no oil from the spill has endangered the beaches in west central Florida and much of Florida's coastline may never see any oil from the spill, potential home purchasers are nonetheless walking away from contracts and forfeiting deposits rather than closing on real estate purchases in our area.
  • The New York Times had an article on an inventive marketing campaign aimed at educating potential visitors to Florida that most of our beaches remain untouched by the oil spill. 
  • The July 5, 2010 edition of Sports Illustrated featured a story by Gary Smith, one of the magazine's most incisive writers, entitled "7 Days in the Life of a Catastrophe."   It's an eye-opening and powerful report on the devastation caused by the spill.

There is a bit of good news to report:

  • The New York Times also reported on changes by the Federal Housing Administration that are expected to widen the range of lenders who can offer loans for purchases of manufactured homes.
  • In addition, the National Flood Insurance program has been extended to September 30, 2010 and has been made retroactive.  This will allow real estate sales that had been on hold due to an inability to obtain flood insurance coverage to now close and will permit new policies to be issued through September 30, 2010.

Finally, from Sunday's Sarasota Herald-Tribune, please read Tom Lyons' column on a rather curious response from the activities committee at the  La Casa ROC in North Port to complaints from several residents who apparently did not want to hear "O Canada" played at events in the community.   I'll think about this column the next time I attend a hockey game in Tampa.

We'll get back to Senate Bill 1196 in my next entry.

New Privacy Provisions of Senate Bill 1196 Do Not Extend to Members of Cooperatives

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.

Golf Carts, Storm Surge, and a Divided Mobile Home Community

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.

Amendments to Florida Statutes for ROCs Effective July 1, 2010

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.

 

Airstreamers as Art and an ROC nightmare

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.  

Proposed U.S. Energy Bill May Benefit Mobile Home Owners

I received an email earlier this week from Jim Ayotte, the Executive Director of the Florida Manufactured Housing Association, about a bill passed last week by the U.S. House of Representatives.

The bill is H.R.5019, the "Home Star Energy Retrofit Act of 2010," and contains an amendment that promotes the purchase of new "energy efficient" manufactured homes by providing a $7500 rebate to homeowners of mobile homes or manufactured homes built before January 1, 1976 who purchase a new "Energy Star-qualified" replacement manufactured home.  The bill also provides an additional $2500 grant for decommissioning the older home.

Jim's email advised that the U.S. Senate could be considering this legislation as early as this week and stressed the importance of contacting our Senators immediately to urge them to vote in favor of the Senate's companion bill, which is S. 1320 and to include the Manufactured Housing Energy Efficiency provision.  

Since the FMHA estimates that there are about 350,000 manufactured or mobile homes in Florida that were built prior to 1976, the passage of this legislation could significantly benefit both homeowners and ROCs.

I am including a link to a sample letter that can be signed and then faxed or mailed to your Senators.   Jim's email noted that this letter must be faxed or mailed because emails with attachments will not be delivered.

If you wish to send this letter to our Florida Senators, their contact information follows:

The Honorable Bill Nelson--716 Hart SOB, Washington, DC  20510 Fax: (202) 228-2183

The Honorable George LeMieux--356 Russell SOB, Washington, DC 20510 Fax (202) 228-5171

Of course, letters sent to Senators in the home states of our "snow birds" would certainly be appropriate. 

This is a great opportunity to make a difference and benefit our communities.

 

Quick Update on House Bill 419

We've just been advised that House Bill 419 has been withdrawn from consideration for the upcoming legislative session in Tallahassee.   As you may recall, House Bill 419 contained provisions allowing the Department of Business and Professional Regulation to examine and inspect the property, books and records of almost any condominium, cooperative, timeshare, or mobile home park in Florida at any time and for any reason (or for no reason) whatsoever.   The bill also would have prohibited weekday meetings of the Board of Directors of condominium and cooperative associations from being held before 6:00 p.m.   In addition, no association would be permitted to make any contribution to a charitable organization unless that association received a direct benefit from that charitable organization. 

Apparently, proposed amendments to the statutes governing ROCs will be found in substitute Senate Bills 1196 and 1222 that have now been introduced and are making their way through the committee process.

We'll keep you posted.

 

Welcome to the newest ROC in Florida

It's always exciting to spread the word to my blog readers when a community joins the list of ROCs in Florida.  

Earlier today, the residents of Riverwalk Mobile Home Village closed on the purchase of their community.   Riverwalk is a beautiful manufactured housing community with over 200 sites located in North Port near the Myakka River.   The residents formed their homeowners association a number of years ago and maintained a good relationship with the community owner over those years.   The association made a point to contact the owner at least annually to remind the owner that the residents were interested in purchasing the community if and when the owner was ready to sell.

The community owner contacted the homeowners association in late December of last year and offered to sell Riverwalk to the association.   The terms offered by the owner required that the closing of the sale occur by no later than February 18, 2010.  Fortunately, the homeowners association had prepared for this opportunity and because of that advance planning and a tremendous amount of effort, the association was able to raise the funds and meet the conditions required under the agreement in time.   As a result, the homeowners association now is the proud owner of what will soon be known as Village at Riverwalk, the newest ROC in Florida!

The associatIon's efforts to purchase Riverwalk were ably led by a terrific group of directors and many volunteers.   Bill Gorman and Norman Loiselle from Lifestyle Choice Realty did a fantastic job of coordinating these efforts and helping the residents keep their enthusiasm and optimism at the highest levels while working with lenders, engineers, vendors, insurance agencies, and many other outside parties throughout the process.

Several financial institutions, including Florida Shores Bank, First Community Bank of America, and Calusa National Bank helped residents finance individual membership share purchases and Bank of America's commitment to the association to provide the blanket loan was crucial to the association's ability to purchase the community.

The association had less than two months from the date that the offer to sell was received to raise the funds needed to complete the purchase.  What the residents lacked in time they more than made up in faith and hard work.  As a result,  Village at Riverwalk is now a resident owned community.

Congratulations and welcome to the residents of Village at Riverwalk!