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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

 

Florida statutes governing condominium and cooperative associations specifically provide that it is the association’s board of directors that is responsible for the administration of the association.   Similarly,  the governing documents for most mandatory homeowners associations governed by Chapter 720 of the Florida Statutes and community associations governed by Chapter 617 of the Florida Statutes provide for administration by a board of directors elected by the association’s members.

Unfortunately, it’s not uncommon for a President to overlook or ignore statutes and the association’s bylaws and attempt to bypass the association’s board (and in the most extreme situations, the association’s members) in making decisions or taking actions unilaterally.

These decisions or actions are often taken without any input from other board members or the community’s manager.   As a result, the President may have already committed the association to a particular course of action (such as entering into a contract to purchase a vehicle or other expensive piece of equipment) before anyone else in the community knows that the purchase has occurred.

In these situations, the President may have clearly exceeded his or her authority–however, he or she may have nonetheless bound the association under the doctrine of "apparent authority" and the association’s members would be obligated to honor a contract that the association’s board of directors never approved.

Presidents should be reminded that, in most, if not all, community associations, the President is elected by only a small group of individuals–the members of the Board of Directors.   The Board of Directors does not have the authority to delegate the power to run the association and the community to any one person, including the President.

The association’s members elect a Board of Directors and it is that Board–and not any one person– that is empowered with the administration of the ROC.  

Presidents should also remember that a Board that appoints one of its members as the association’s President has the power to remove that person from the office of President if that Board sees fit to do so.

Obviously, there are certain day-to-day operational decisions that should fall within the discretion of a President and/or ROC manager.   However, the President that chooses to exceed the scope of his or her authority does so at the President’s peril–and that of the association itself.

 

 

Florida’s Republican primary is just a few days away and many, if not most, of the community associations in our state are in the midst of their own ROC board elections.

What better time to remind unit owners in condominiums and cooperatives about the procedures that must be followed if the association wishes to verify information on the outer envelope (which contains the inner envelope in which the completed ballot has been placed).

Florida Administrative Code Section 61B-23.0021(10)(b) describes the process for condominium associations and FAC Section 61B-75.005(10)(b) details the process for cooperative associations.  These sections provide that an association that wishes to verify outer envelope information in advance of the annual meeting may do so as follows:

  • The board designates a committee that does NOT include current board members, officers, candidates for the board in this election, or the spouses of any of these persons–this is defined as being "impartial" in these two FAC sections
  • This impartial committee may then hold a meeting to verify the outer envelope information.
  • This meeting must be noticed in the same manner as board meetings and must be open to all unit owners

At the meeting of this impartial committee, the signature and unit identification on the outer envelope must be checked against the list of qualified voters and the voters shall be checked off on the list as having voted.  

Any exterior envelope not signed by the eligible voter shall be marked "Disregarded" or with "words of similar import," and any ballots contained in those disregarded envelopes shall NOT be counted.

A few more very important points:

Neither the inner nor the outer envelopes can be opened until the "polls are closed" and no more ballots are being accepted.

The outer envelope must be signed by the eligible voter–simply sticking an address label with the eligible voter’s name on the outer envelope–without some evidence of that eligible voter’s signature–is NOT sufficient

Finally, and perhaps most important, any meeting of the impartial committee to verify the outer envelope information MUST be held on the day of the election.   ROCs that allow this committee to verify these outer envelopes prior to the day of the election are violating Florida law.

I assume that the drafters of these FAC sections realized that not allowing the impartial committee to meet until the day of the election would result in some very long annual meetings–and I’ve had the pleasure of serving as the "entertainment" at many resident owned communities while the envelopes were being opened and the ballots counted!

Our next four weeks will be very busy with annual meetings and seminars in Bradenton, Lake Placid, Bonita Springs, and Venice.   We hope to see you at one of those seminars–please contact Karen (kmidlam@lutzbobo.com) or Kathy (ksawdo@lutzbobo.com) if you haven’t already rsvp’d and want to attend one of those events.

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!

 

Every ROC has at least one "gadfly"–that owner who has decided, for whatever reason, to devote every waking minute to creating as much misery as possible for the manager, the board, and the other members of the community.   We consider a community lucky if it’s home to only one of these cantankerous creatures.

What happens when that "gadfly" decides to run for the community association’s board of directors?

Let’s assume that this"gadfly" is a unit owner in a condominium or cooperative association.   He (or she) meets all of the statutory qualifications (and there are more conditions for candidates for the board in condominiums than there are in cooperatives) and gives the association written notice of the intention to be a candidate at least 40 days before the election.

Our "gadfly" then begins campaigning by going door to door, handing out flyers, making phone calls and sending all kinds of political advertisements to other unit owners by mail and email. 

In addition, the "candidate information sheet" that the "gadfly" submits to the association not less than 35 days before the election doesn’t contain any information about the "gadfly’s" background, education, and qualifications.  Instead, the "gadfly" has filled the entire 8 1/2 inch by 11 inch sheet with factually incorrect statements about the current board members, false accusations against the community’s manager, and campaign promises that the "gadfly" clearly will not be able to keep even if he or she is elected. 

Can the association prevent the "gadfly" from campaigning?

  • There are no provisions in the Florida Statutes or Florida Administrative Code sections governing the election process in condominium or cooperative  associations that prevent a candidate from campaigning.   Assuming that the gadfly has not improperly obtained the email addresses and phone numbers of the other unit owners, the association is well advised to simply allow the gadfly to campaign.

Can the association edit the "gadfly’s" candidate information sheet or tell the "gadfly" that the information sheet won’t be included in the election materials unless the "gadfly" submits a revised sheet that contains only the "gadfly’s" background, education, and qualifications?

  • The Florida Administrative Code Sections governing these information sheets in both condominium and cooperative association elections are clear that these sheets may describe the candidate’s background, education, and qualifications as well as other factors deemed relevant by the candidate.
  • In addition, Florida’s statutes provide that condominium associations and cooperative associations are not liable for the contents of the information sheets provided by the candidates.
  • Finally, the Election Brochures developed by Florida’s Division of Condominiums, Timeshares, and Mobile Homes for both condominium and cooperative associations caution that "an association may not edit, alter, or otherwise modify the content of the information sheet".

In other words, ROC managers and board members have to assume that the "gadfly’s" fellow unit owners will approach the election of the association’s board members in an intelligent and responsible fashion–regardless of the outcome of that election. 

We’ve got several seminars and presentations scheduled for late November and the month of December and I’ll post that information in my next entry.

My last blog entry discussed the rights of an association to assess fines and suspend rights to use facilities in a resident owned cooperative as provided in Florida Statute Section 719.303(3).   Both condominium associations (under F.S. Section 718.303(3)) and mandatory homeowners’ associations (under F.S. Section 720.305(2)) have similar enforcement tools where a unit owner or parcel owner (or that owner’s licensee, invitee or other occupant of the home) fails to follow the association’s documents or the reasonable rules governing the community.

What about members of condominium, cooperative, or mandatory homeowners’ associations that fail to fulfill their financial obligations to the community?

Board members in condominium associations can look to F.S. Section 718.303(4)-(6), co-op board members can rely on F.S. Section 719.303(4)-(6), and board members in mandatory homeowners’  associations have available to them F.S. Section 720.305(3)-(5).   Each of these statutes provides that, if a unit owner or parcel owner is more than 90 days delinquent in paying a monetary obligation due to the association, the board may suspend the right of that owner to use common elements, common facilities, or any other association property until the monetary obligation is paid in full.   There are several additional points that are very important in regards to the suspension of these use rights:

  • The suspension applies to both the owner and the unit or parcel’s tenant, licensee, invitee, or other occupant of the home
  • In general, the right to use limited common elements used only by that unit or parcel, common elements needed to access that unit or parcel, utility services provided to that unit or parcel,  parking spaces, or elevators cannot be suspended under these provisions of the statutes

In addition, if an owner is more than 90 days delinquent in the payment of any monetary obligation  due to the association, the voting rights attributable to that owner or the unit may be suspended, until such time as there is full payment of all obligations currently due or overdue the association.

The suspension of these use and voting rights for failure to timely pay amounts owed to the association may be imposed without the hearing provided for where fines or suspension of use rights are being imposed for failure to abide by the association’s governing documents or the community’s reasonable rules.  All that’s required is a properly noticed board meeting (and of course an agenda that clearly notes that the board is going to consider the suspension of the use and/or voting rights) and, once the suspension is approved, notification to the owner (and, if applicable, the occupant, licensee, invitee, or tenant) of the suspension by mail or hand delivery.

These suspensions can occur if an owner fails to pay "any monetary obligation"–not just maintenance fees or other regular assessments, and the notice of the suspension does not appear to have to sent by certified or registered mail.

Clearly, Florida’s legislators have given managers and board members in ROCs some ammunition in the ongoing struggle for our communities to maintain financial health.

 

 

I’ve been spending a good deal of time recently attending the annual membership meetings of a number of the ROCs we represent and helping many of our communities prepare for these meetings.

I thought I’d list a few reminders for board members and managers of condominium and cooperative associations preparing for annual meetings:

  • The annual meeting is a meeting of the members–it’s not a board meeting.   While it’s common for the board members at the annual meeting to sit and face the unit owners, the directors should remember that it’s the membership that will be voting on the issues on the agenda.
  • The agenda should concisely and clearly list what business will be considered by the membership.  Only items on the agenda can be considered by the members.
  • Ballots are NOT proxies and cannot be used to establish a quorum.   While only twenty per cent of the unit owners are needed to cast ballots in order to conduct an election of the association’s directors, other items that require the approval of the unit owners at the annual meeting must occur at a meeting where there is a quorum of the membership’s voting interests present.  That quorum requirement is usually a simple majority of the voting interests.
  • As we all know, the quorum requirement can be satisfied through the use of proxies that allow a unit owner who does not attend the meeting to appoint a proxy holder to cast that absent unit owner’s vote.   Florida statutes governing condominium associations and cooperative associations allow both limited and general proxies to be used to help establish a quorum.

Occasionally, a cooperative or condominium association will have an annual meeting where the unit owners will not be voting on any item that would have to be included on a limited proxy form.  Communities that are fully funding reserves and conducting annual audits would thus not be voting to waive those requirements and might have no other issues requiring a unit owner vote requiring limited proxies.  However, managers and board members in these communities should still deliver a general proxy form to the unit owners and take great care to stress to the membership the importance of properly completing and returning those general proxies.   Keep in mind that if the unit owners decide that there’s no reason ton attend the annual meeting (since "nothing important" is happening) and not enough of those unit owners return completed proxies to the association, the association may not be able to conduct any official business at the annual meeting because a quorum was not obtained.

Hopefully, problems of this nature will remain extremely rare in Florida’s resident owned communities.

We’ll be posting the dates and locations of this season’s last set of seminars as well as several speaking engagements within the next two weeks and hope you’ll be able to attend one of those events.