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!

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

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

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

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

Stay safe!

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Finally, a few other points to consider:

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

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

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

 

 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.

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.

 

 

As many of my readers know, Senate Bill 1196 amended Florida Statute Section 718.116(1)(b) to provide that a first mortgagee or its successor or assignee who acquires title to a condominium unit by foreclosure or by deed in lieu of foreclosure is required to pay the unpaid assessments that became due before the mortgagee’s acquiring title in an amount equal to the lesser of:

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

The provisions of amended F.S. Section 718.116(1)(b) may not apply in certain situations where the first mortgagee fails to join the association as a party in the foreclosure action.

Prior to SB 1196, a condominium association was only entitled to the lesser of 6 months’ unpaid common expenses and regular periodic assessments or one percent of the original mortgage debt.

With this amendment, condominium associations find themselves granted the same relief as mandatory homeowners associations–the latter through the provisions of F.S. Section 720.3085.

What about cooperative associations?

I’ve searched through Chapter 719 (which governs cooperatives) and SB 1196 and can find no language that either establishes or limits the liability of any one acquiring title to a cooperative unit by foreclosure or by an assignment in lieu of foreclosure for unpaid common expenses or regular periodic assessments owed to the cooperative association.

This is one of many examples of the differences between Chapters 718, 719, and 720 of the Florida Statutes. 

When it comes to resident owned communities, one size truly does not fit all and a board or manager should consult with the association’s attorney when dealing with these unpaid assessments–especially if the ROC is a cooperative.

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

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

There is a bit of good news to report:

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

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

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

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

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

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

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

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

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

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

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.