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.

A First Hand Look at Fair Housing

I woke up one morning this summer with a pain in the area of my right shoulder blade.  I assumed that I'd just pulled or strained a muscle in my neck or back--that's a fairly common but very temporary hazard of lifting weights and trying to maintain an active lifestyle for us "baby boomers".

Six weeks later, it was clear that there was more involved than just a muscle strain.  By the time my MRI revealed that I had several herniated discs in my neck, the discomfort and pain radiating down my right arm into my hand made it difficult--if not impossible--for me to work at my desk or on my computer for more than a few minutes at a time.

While I've managed to cope by answering emails on my iPhone, on my home laptop, or by installing an unwieldy device on my office chair, I feel like I'm functioning at perhaps 50% capacity and by the time I leave the office at the end of the day I can't wait to collapse on a couch at my home with an ice pack on my aching shoulder.

Here's the point I'd like to make today:  there's absolutely no way anyone can tell how much pain and discomfort I feel--I have no cast, sling, nor any other visible signs to show that I have a condition that causes me great pain and will require surgery to correct.  

Not every disability is readily apparent. Board members and managers in resident owned communities are often requested to grant requests for reasonable accommodations under the Fair Housing Act to persons who show no outward signs of any disability.

I've continually stressed to ROC board members and managers the tremendous risks involved when a board refuses to grant a resident's request for a reasonable accommodation simply because there's no visible evidence that the resident is disabled.

As someone who has now "walked in the shoes" of many of these residents, I have a much better understanding of their anger and frustration when their legitimate requests are denied by ROC boards.  That anger and frustration may very well lead to a Fair Housing complaint and that's certainly not in the best interests of an association or its members.

I'll be submitting my materials for a board certification training seminar to the Division of Florida Condominiums, Timeshares, and Mobile Homes later this week and hope to have those materials approved within the next few weeks.  These materials will focus on training board members in resident owned cooperatives and once approved will be sufficient for those board members to meet the new board certification requirements under Chapter 719 of the Florida Statutes.

Once I get the approval from the Division, we'll schedule a few board training seminars and I'll post the times and locations on my blog.

In the meantime, I'll be taking care of those herniated discs within the next few days and hope to be back at work and posting entries on this blog before all of our "snowbirds" return for the holidays!

 

 

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".

A Consumer Alert for ROCs: SB 286 and HB 575

Earlier today, I received an email from the Community Association Institute's Florida Legislative Alliance ("FLA") alerting me to bills to be introduced in the upcoming legislative session in Tallahassee.

According to the email, Senate Bill 286 and House Bill 575 "will have a serious negative impact on community associations and other consumers of design professional services."

The email from the FLA continues:

"As presently designed, these bills will permit surveyors, engineers, landscape architects, architects and interior designers ("design professionals") to eliminate all personal liability for economic damages caused by the negligent performance of their design professional services pursuant to a contract with the consumer.  This is done by them simply placing a 'prominent statement (in their form contract), in uppercase font that is at least 5 point sizes larger than the rest of the text', and, pursuant to this legislation, an individual employee or agent may not be held individually liable for negligence."

According to the FLA, supporters of these bills argue that consumers will take steps to re-impose liability on a "design professional" upon seeing that "prominent statement" in the contract.  However, this argument--according to the FLA--"completely ignores human nature" and the fact that many, if not most, consumers (including ROC boards) sign form contracts without even reading those contracts.

In addition, while these bills do not protect design professional companies, the FLA contends that design professional companies can easily "hide" assets by placing them in other entities--thus eliminating any realistic chance of a consumer or community association recovering any amounts when suffering damages as a result of the negligence of a "design professional".

The FLA's email summarizes SB 286 and HB 575 as "an unfortunate attempt to shift the ultimate negligence liability burden from the design professionals to the consumers."

If you agree with the FLA's analysis of these bills, the FLA urges you to contact your state senator and state representative as well as the members of Florida's Senate Judiciary Committee and House Civil Justice Subcommittee to request that they oppose any attempt to reduce liability for these "design professionals".   The FLA asks that you include a reference to SB 286 in your correspondence to Florida's Senators and refer to HB 575 when contacting Florida's Representatives.

Just a reminder--if you're a ROC manager or board member and haven't already sent in your reservation for the Third Annual Community Association Festival at the Venice Community Center on Wednesday,  February 20, there's still time!  Just send an email to deanna@sleuthpt.com or call 941-809-2031.  Remember, the event's free, and that includes a continental breakfast, a barbecue lunch, and a lot of information and networking opportunities.  I hope to see you there--just wear your favorite Hawaiian shirt!
 

 

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!

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.

 

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.

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.

 

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.

Upcoming Educational Opportunities for ROCs

We've got a very busy five or six weeks ahead of us with several chances for managers and board members in resident owned communities to hear from us:

  • I'll be speaking about fines and suspending privileges as well as pet issues at the Mid-Florida ROC meeting at the Molokai community in Leesburg on Tuesday morning, November 29th.

Bill Korp and I will be making presentations on elections, budgets, and a number of other topics at our upcoming ROC "roundtables":

Our "roundtables" begin at 10 A.M. and end between noon and 12:30.  These events are great for board members that want to learn and also network with residents from other communities.  Refreshments are served and there's no charge.   If you're interested in attending and haven't already rsvp'd, please email either Kathy Sawdo (ksawdo@lutzbobo.com) or Karen Midlam (kmidlam@lutzbobo.com).  Just let either of them know which one of these "roundtables" you'll be attending, how many will be attending from your community, and whether you'll need directions to the host community.

I'll also be speaking at Tamiami Village in North Fort Myers on the morning of December 21 for the monthly meeting of SWFROC and will be presenting a seminar on the procedures and requirements for the election of directors in ROCs after the January 4 breakfast meeting of the West Florida chapter of the Community Associations Institute.

I hope to see you at one or more of these events.

Have a happy and relaxing Thanksgiving surrounded by friends and family.   Go Gators and Go Blue!

 

ROCs and the Penn State Scandal

As many of my readers know, while my wife and children graduated from the University of Florida, I graduated from the University of Michigan and received my law degree from Ohio State.   I was born and raised on Big Ten football and bleed maize and blue (to the dismay of my Buckeye friends and family).

Penn State joined the Big Ten about twenty years ago and there have been many memorable games between the Nittany Lions and my beloved Wolverines--while the players changed, and other coaches left the profession, Joe Paterno remained as the symbol of Penn State.  In many ways, he was regarded as the shining example of all that was and is good about big-time college athletics.

I spent part of last night reading (with shock and outrage) all 23 pages of the grand jury report that resulted in the charges against Jerry Sandusky, a former defensive coordinator under Paterno at Penn State, as well as  the university's athletic director and the school's vice president for finance and business.   I will not post the link to that report as it is both graphic and horrifying in detailing how Sandusky allegedly abused at least 8 young boys and how Penn State's administrators allegedly allowed this abuse to occur.

Earlier this afternoon, Joe Paterno issued a statement that he would be retiring at the end of this football season.

My partner, Jody Gabel, and I, find ourselves more and more frequently helping communities struggle with the very real concerns raised by sexual offenders or predators. It's certainly understandable that many residents feel threatened when they discover that there is a sexual offender or predator in their midst.

Here are a few thoughts and suggestions that may be helpful:

  • Screening of prospective residents is absolutely essential.  The best way to deal with a sexual predator is before he or she becomes a resident in the community.  I advise ROCs we represent  to screen any person that intends on occupying a home in the community for any period of time greater than one month.   Once the predator or sexual offender moves into the community, the amount of time, effort, and expense involved in trying to remove him or her will be substantial, and there's no guarantee that the offender or predator will be required to move.   We also suggest that our clients use a professional screening company for all residency applications--there are a number of very good companies that focus on this very important task.
  • While a community may have to allow a resident to have a caregiver as a "reasonable accommodation" under the Fair Housing Act, the community should insist that the proposed caregiver undergo screening.   The last thing a ROC manager or board wants to deal with is a "caregiver" who is a convicted sexual predator.

When it's discovered that a person who already lives in the community has a record of being either a sexual predator or sexual offender, a number of factors must be considered:

Did the offender/predator lie or withhold information on the application for residency?

Did the offender/predator become a resident before the community's rules (if any) requiring screening and/or approval of the association to the residency went into effect?

Was the resident convicted of the offense after he or she moved into the community?

How long ago did the offense occur and what's the nature of the offense?   There's certainly a difference between a resident who was convicted 40 years ago (when he was 19)  of having improper relations (and thus may be a registered offender) with his 17 year old girl friend (who happens to be his wife of 39 years) and the 56 year old resident who has been convicted of being a sexual predator on several occasions in the last decade.

I have always advised against posting information about a resident's real or alleged record as a sexual offender or predator.   Errors can be made and neither the residents in the community nor the association itself is well served by spreading information that turns out to be misleading or false.   The better course of action is to simply post a notice in the community clubhouse or other public area advising that anyone that wishes to determine whether any registered sexual predators or offenders live in or near the community can do so by visiting Florida's Sexual Offenders and Predators  Website.

And, as always, when in doubt, contact legal counsel.  These are extremely difficult issues and the association's attorney can help the community navigate these very troubled waters.

I'm updating this entry while watching the press conference conducted by a member of Penn State's Board of Trustees where Joe Paterno's firing has just been announced.   What a nightmarish end to his tenure and a unfathomable taint on his legacy.

 

Cooperative Associations, Fines, and Suspension of Use Rights

The very successful and well attended 2nd Annual Dowd, Whitaker & Associates Community  Festival was held in Venice earlier this week.   I was pleased to be one of the presenters at the Festival and had the opportunity to speak to an impressive number of members and managers of resident owned cooperatives throughout southwest Florida.

I covered a number of topics during my presentation but the one that generated the most discussion involved Florida Statute Section 719.303 and in particular the provisions relating to fines and suspension of  use rights for failure to comply with the cooperative documents or the association's reasonable rules.

Here are a few important pieces of information from that presentation:

1.   The authorization to assess fines or suspend use rights or voting rights does not need to be included in the community's governing documents.

2.   Fines cannot exceed $100 per violation or $1000 total but a fine may be assessed on the basis of each day of a continuing violation.

3.   Fines may not become a lien on a unit under this statute.

4.   Fines may not be assessed and use rights may not be suspended unless the unit owner (or, if applicable, the unit's licensee or invitee) is provided with reasonable notice and the opportunity for a hearing before a committee of other unit owners.   If the committee does not agree with the fine or suspension, the fine or suspension can not be imposed.   I do not see any provision in the statute that prevents board members from serving on this committee.

5.     Even if the association's bylaws specifically permit closed committee meetings pursuant to Florida Statute Section 719.106(1)(c), I'd suggest that the safer course of action may be to keep these hearings open to the general members--since the statute clearly provides that the committee's decision not to impose a fine or suspension prevents the board and the association from imposing the fine or suspension, I'm concerned that this committee may be held to "take final action on behalf of the board" and thus not be allowed to hold its hearings behind closed doors.  

The association can also suspend voting and use rights where a member is more than 90 days delinquent in paying any monetary obligation owed to the association.   There's no need for a hearing in these situations and I'll go into further detail in my next blog entry.

 

 

 

 

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.  

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.

 

 

 

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!

 

The DBPR, ROCs, and "Nuisances"

Now that the annual migration of the "snowbirds" to our resident owned communities is well under way, so are the number of complaints we receive each week about  "nuisances".   Whether it's the dog that barks at all hours of the day and night, the next door neighbor who plays his stereo loudly, or the "shady" character across the street who insists on hosting "wild" parties with the "wrong" crowd every night, I can assure you that every ROC has at one time or another dealt with behavior that at least some of its residents believe is a "nuisance."

There have been some recent decisions from the arbitrators at the Department of Business and Professional Regulation's Division of Condominiums, Timeshares, and Mobile Homes on the subject.

Here's a summary of some of those decisions:

  • A Summary Final Order by an arbitrator in November of 2008 provides that proof of a "nuisance" requires evidence of repeated behavior which interferes with a protected legal right in a substantial, appreciable, and tangible way.  Nuisance is not established by evidence limited to two isolated incidents of subjective reactions to the operation of a Segway on the community's common elements.
  • Last December, an arbitrator found that a single incident of yelling at board members did not, as a matter of law, constitute a "nuisance".
  • No "nuisance" was found in a January, 2009 decision that involved an allegation of a single instance of a drunken brawl in the ROC's jacuzzi involving tenants of the unit owner. 
  • In August of 2009, an arbitrator determined an arbitration petition that only alleged a single incidence of yelling and drunkenness was not sufficient to establish a "nuisance."
  • However, an arbitrator's order entered in September of 2009 found that where a unit owner was alleged to have removed extensive portions of the common element drywall in his condominium unit, which made it much easier for cigarette smoke to pass from his unit into adjoining units, that unit owner was ordered to restore all of the drywall in his unit and to cease smoking in the unit until the required drywall was restored.
  • Finally, an arbitrator's decision in January of 2009 required a unit owner to remove pit bulls exceeding 20 pounds from her unit.  The ROC's declaration of condominium permitted pets weighing less than 20 pounds and prohibited nuisances or practices that were a source of annoyance to the residents or interfered with other unit owners' peaceful possession of their units.  One of the pit bulls had already bitten a resident and the unit owner had demonstrated that she would continue to flout the requirements of the declaration without an order from the arbitrator requiring compliance.

Thanks to my colleague, Karl Scheuerman, for compiling a very comprehensive summary of the DBPR'S arbitration decisions.

Paradise Bay and Imperial Bonita Estates did a fine job of hosting last week's seminars and we're looking forward to this week's seminars at Village at Riverwalk in North Port and Hammock Estates in Sebring. 

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!

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.

ROCs Must Use Caution When Responding to Fair Housing Complaints

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

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

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

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

The brief facts are as follows:

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

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

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

 

 

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.

ROC Boards Should Consider the Costs of "Principle"

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

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

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

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

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

ROC Boards Must Be Consistent When Enforcing Rules

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

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

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

A Few Important Differences in Florida's Laws Governing Condominiums and Cooperatives

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

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

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

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

Stay tuned.

 

ROC Boards Should Use Common Sense and Compassion When Enforcing Rules

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

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

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

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

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

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

 

 

ROC Boards Face Tough Decisions in a Difficult Economy

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

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

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

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

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

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

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

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

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

 

 

ROC Rules Should Require Prior Written Approvals for Certain Actions

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

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

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

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

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

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

 

 

 

 

 

ROCs can use written rules to encourage civility at meetings

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

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

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

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

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

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

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

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

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

   

 

ROCs control the use of the 20 percent in "55 and over" communities

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

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

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

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

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

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

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

 

 

 

"Pet Lists" Do Not Violate Federal Privacy Rules

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

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

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

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

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

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

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

How can ROCs help prevent golf cart accidents?

I've received two calls this month about golf cart accidents in resident owned communities.             

The first call was from a resident who had been given my name at the office at one of the ROCs we represent.   This resident told me that he was attending a private function in the ROC's clubhouse and drove his golf cart to that event.   He parked the cart by the clubhouse but left his keys in the cart--and, while he was in the clubhouse, another resident's grandson started the cart and ran into another child.   According to the caller, he didn't think the child's injuries were severe, but was nonetheless concerned about his potential liability.   I advised him that, because our firm represented the ROC, I could only suggest that he find another attorney and contact his insurance carrier.  I then contacted the ROC's manager to confirm that the event was not sponsored by the ROC and suggested that the ROC advise its insurance agent about the incident just to be safe.

The second call was from several officers of another ROC I've worked with for almost fifteen years.  The ROC's President was clearly upset as he told me that one of the community's residents had been killed and several others injured the day before in a golf cart accident.  This horrible incident occurred in the community and these officers wondered whether it made sense for the board to pass a rule requiring that all residents with golf carts provide the ROC office with proof of insurance covering their carts.  While I advised these officers that such a rule might create more problems than solutions for their community (for reasons I'll explain in an entry within the next few weeks), I told them  to immediately contact the ROC's insurance agent about the accident, even though the golf cart was not owned by the ROC nor driven by either a member of the ROC board or an employee of the ROC.

Golf carts function as "second cars" for many residents in ROCs and it's common to see drivers of almost all ages seated behind the steering wheel of these vehicles.   We tend to forget that golf carts are not "toys" and that severe injury or death can result from golf cart accidents.   I found an  entry in another Florida law blog that focused on the increase in golf cart accidents over the past few years and I recommend it to ROC managers and board members.

What can ROC managers and board members do to minimize the chances of golf cart accidents in their communities?  

Here are a few suggestions:

  • Is your insurance agent able to speak about golf cart safety?  How about someone from your local law enforcement agency?   If so, invite them to speak at one of your community's regular coffees or other well-attended social events.
  • If your community doesn't already have rules prohibiting children driving golf carts, or at least requiring an adult to be in the cart with them when they are driving and prohibiting children under a certain age from driving carts, consider passing such a rule or revising your current rules if needed.   Note that Florida's statute  governing the operation of golf carts provides that a person must be at least 14 years old to operate a golf cart on a "public road or street" and that local municipalities are permitted to pass laws governing the operation of golf carts that are more restrictive than the state's requirements.
  • Rules can also be amended or added to encourage all golf cart owners to obtain and maintain golf cart insurance.
  • ROCs should also consider requiring golf cart owners to register their carts with the office, obey posted speed limits, and remove the keys from the cart when the cart is parked or otherwise not in use.
  • Finally, I'd suggest posting this entry and the other blog entry I mentioned above on the community bulletin board and keeping the entries there for the next few months so your "snowbirds" can read them when they return.

Any golf cart accident, particularly one that causes injury or death, is one too many.  Let's all do our best to educate ROC members and guests that golf carts are not "toys" and must be operated properly and safely.

 

 

 

 

How can ROC's enforce pet rules?

I've been working with Resident Owned Communities (ROC's) in Florida for almost two decades and problems with pets continue to be a source of aggravation for managers, board members, and residents alike. Pet rules come in all shapes and sizes. Here's a small sample of pet regulations that boards and managers are trying to enforce in their communities:

  1. No pets allowed and no exceptions.
  2. Pets allowed only in certain sections (aka "the Pet Section") of the community.
  3. Indoor cats allowed (birds and aquarium type fish also) but no dogs.
  4. Pets allowed but only up to a certain weight limit  (my personal "favorite"--ever tried putting an energetic terrier on a scale--and exactly who serves as the "weight police"?)
  5. Pet allowed except for certain breeds of dogs deemed "dangerous" by the board of directors, the community's insurance company, and/or the resident "canine expert".

Whatever rules a community is trying to enforce (and the five I've listed above are just the tip of the iceberg), sooner or later, every community is faced with one or more residents that insist on attempting to violate that community's pet rules. Once the violation is brought to the attention of the board or the manager, you can be certain that many community residents will be "taking sides" on how (and whether) the community's leadership deals with the violation.  

There are several very important factors that should be considered when board members and managers determine how to deal with the violation of a pet rule, including the following:

  1. Has the resident provided sufficient documentation or otherwise established that he or she is "disabled" and requires the pet as a "reasonable accomodation" under the the federal and state provisions of the Fair Housing Laws and the Americans with Disabilities Act? Is the pet certified as a "service animal"? In these situations, community leadership is required to allow the resident to have the pet and should not provide any information to anyone as to the nature of the resident's disability. Board members and managers should simply state that the resident's request to have a pet was allowed "on the advice of counsel". In other words, blame it on the attorney (I assure the communities I work with that I have thick skin and it goes with the territory).
     
  2. Are there any other violations of the pet rules in the community that any member of the board knows about?  If so, the board should be prepared to take action against every person that is violating pet rules. One of my favorite conversations occurs when a resident that has received a notice of a pet rule violation calls me to complain that he or she is being harassed and "singled out" by the manager or the board because other residents in the community are violating the pet rules and the board hasn't taken any action against those residents. This allows me to assure the  resident that the manager or board will take action against any other resident violating the pet rules and to ask that resident to provide me with the names of the other residents violating the rules. I can have this conversation only if I'm confident that the board has taken and will continue to take the appropriate action against other residents violating the pet rules.
     
  3. Is the board and the community prepared to incur the costs of enforcing the pet rules? When verbal and written requests fail to persuade the resident to remove the pet. the board has to decide whether the importance of enforcing the rule outweighs the money that the community will have to spend to have its attorney take the steps needed to attempt to force the resident to comply with the pet rule. If the resident is a unit owner in a cooperative or condomium, the community will have to submit the dispute to mandatory non-binding arbitration as required by Florida Statute Section 718.1255 (for condominium associations) or Florida Statute Section 719.106 ( for cooperative associations). In addition, because the arbitration proceedings are "non-binding," even if the association wins at the arbitration, the resident can delay removing the pet by filing a court action. This may result in the association having to try its case twice with a substantial increase in its legal costs that may or may not be recoverable from the resident violating the pet rule. Even where the resident is a non-member mobile homeowner subject to an eviction action under Florida Statute Section 723.061 (without the need to first submit the dispute to non-binding arbitration), costs and legal fees will be incurred by the association. In addition, anytime a dispute comes before an arbitrator or a judge there is no way to guarantee that the case will be decided in the community's favor and there are not many people that enjoy the stress and preparation involved in testifying under oath in a courtroom setting or at an arbitration.

I've always suggested that another factor to be considered by boards and managers when dealing with violations of pet rules is the behavior of the pet.   Would you rather be living next to a well-behaved Great Dane that has never disturbed anyone in the community or a yapping lap dog that barks at all hours of the day and night?

In some cases, the board may decide that a particular pet rule needs to be revised or removed entirely.  For example, perhaps there are now so many cats that have been allowed to live in the community in spite of a "no cat" rule that it makes no sense to keep that rule in the community's governing regulations.  However, the time to make that decision is not when the community is in the midst of a dispute with a stubborn owner who insists that the pet rules apply to everyone but him.  It's on these occasions that the board has to take a reasonable but at the same time forceful approach to the enforcement of its community rules.