The Florida legislature has provided managers and boards of condominium associations, cooperative associations and mandatory homeowners associations with some help in collecting delinquent payments from unit owners and association members.

Senate Bill 1196, which goes into effect on July 1, 2010, provides that if a unit or parcel is occupied by a tenant and the unit owner or parcel owner is delinquent in paying any monetary obligation due to the association, the association may demand that the tenant pay to the association "the future monetary obligations" related to the unit or parcel.  For some reason, condominium and cooperative associations are required to make a written demand on the tenant while the language applying to Chapter 720 homeowners associations does not seem to require a written demand.  I assume that "future monetary obligations" refers to the tenant’s obligations to pay rent to the unit or parcel owner.   In all cases, the demand is continuing in nature and the tenant must pay the monetary obligations (again, I assume this is the amount to be otherwise paid by the tenant to the unit or parcel owner) until:

  • The association releases the tenant from making any further payments to the association
  • The tenant discontinues tenancy in the unit or parcel

Condominium and cooperative associations are required to mail written notice to the unit owner of the association’s demand that the tenant make payments to the association but again no such requirement seems to be included in the provisions for mandatory homeowners associations.  

A tenant who acts in good faith in response to a written demand from an association and pays his or her rent to that association is immune from any claim from the unit or parcel owner.

In addition, the revised statutes now appears to allow ROCs to evict tenants for failure to pay monetary obligations pursuant to the residential landlord-tenant provisions of Florida Statutes. 

There is a good deal more involved in these amendments and I’ll post further entries on them this summer.  

 

 

 

Governor Crist signed Senate Bill 1196 into law last week and I’ll be posting several entries about the amendments to Florida’s statutes affecting condominiums, cooperatives, and mandatory homeowners’ associations in the coming weeks. 

I’d like to first mention a provision in Senate Bill 1196 that corrects a "glitch" in the statutes governing cooperative associations.

SB 1196 amends Florida Statute Section 719.106(1)(d)6 to provide that, unless a cooperative association’s bylaws provide otherwise, a board member appointed or elected to fill a vacancy on the board that occurs before the expiration of the term serves for the full remaining term of the seat being filled.   Although the Florida Administrative Code Section that expanded on F.S. 719.106(1)(d) specifically provides for a vacant seat being filled for the full remaining term, because the statute itself was silent on the issue, there was some uncertainty as to whether the vacancy was filled for the full term or only until the next annual meeting.   This amendment removes any potential inconsistency between condominium associations and cooperative associations on the issue of filling a vacant position on the board that occurs before the expiration of the term.

SB 1196 further amends the statutes governing retrofitting for fire sprinkler systems in both condominiums and cooperatives by prohibiting local authorities from requiring completion of fire sprinkler system retrofitting before the end of 2019.   This is a five year extension from the date provided for prior to this amendment.   The association membership still has the right to "opt out" of retrofitting.

SB 1196 also adds several categories of information that is not to be made available to members or parcel owners in mandatory homeowners associations.

In my next entry, I’ll discuss some changes found in SB 1196 that are intended to help ROC boards and managers deal with our foreclosure crisis.

 

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

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

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

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

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

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

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

 

 

 

Continue Reading ROCs Should Prepare for an Active Hurricane Season

I’m posting two very different articles for the education and enjoyment of my blog readers:

  • A horror story from a recent edition of the Fort Lauderdale Sun-Sentinel about a ROC board’s disastrous decision to forego insurance coverage.
  • A much lighter report from the May 16, 2010 edition of the St.Petersburg Times about the "Airstream Ranch" now featured along I-4 in Hillsborough County.

I hope you’ll find these stories interesting and informative.  

Most ROC managers and board members know that Florida statutes governing condominium associations and cooperative associations allow directors to attend a board meeting by phone.  

While the statutes governing mandatory homeowners associations don’t provide for an HOA board member to appear by phone at a board meeting, if the HOA is a not-for-profit corporation (and most are), the provisions of Florida Statute Section 617.0820(4) may apply and allow HOA directors to participate by "any means of communication by which all directors participating may simultaneously hear each other during the meeting".

The statutory provisions governing condominium and cooperative associations focus on the ability the directors not attending the meeting in person to hear and be heard by the board members attending in person as well as the unit owners present at the board meeting.  Both statutes (Section 718.112(2)(b)5 for condominium associations and 719.106(1)(b)5 for cooperative associations), in contrast to Section 617.0820(4), specifically refer to a "telephone conference" and the use of a "telephone speaker".

But what about Skype?

Many of my blog readers may know that Skype is a free computer program that allows its users to speak at no expense with other Skype users through their computers via the internet.  

One of the manufactured housing cooperatives we represent was thinking about using Skype as a substitute for phone conference calls for directors who could not appear in person for board meetings.   At the time, I hadn’t sampled Skype and felt that the process might be too cumbersome and was concerned about statute’s specific reference to the use of a telephone.

That was several months ago–before I retired the old but trusty laptop that my younger daughter had handed down to me and purchased a new laptop with a built-in web camera feature.   I thus had an excuse to try Skype and was very impressed with the audio and visual quality of the connection (no doubt to the amusement and mild annoyance of my daughters and one of my nieces who were the first three recipients of my Skype "test run" and who of course have used Skype for several years).

I visited Skype’s website and it appears that Skype users can easily arrange for conference calls that will allow everyone on the call to hear and be heard.   I can certainly picture board meetings where there will be a laptop (rather than a telephone speaker) in the center of the table at the ROC clubhouse where the meeting is being held–all at no cost to the association other than the ongoing monthly charge for internet service and, if a member’s laptop is not on that clubhouse table, the one-time charge for the association to purchase a laptop.

While using Skype rather than a telephone speaker may not technically constitute a "telephone conference," I would certainly hope that as long as all board members and unit owners can hear and be heard, a board meeting where some directors attend by Skype would meet the statutory requirements.

I’m can’t wait for my next chat with that forward thinking ROC.

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

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

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

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

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

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

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

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

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

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

 

I want to bring two recent items to the attention of my blog readers.   I’ve touched on one of the items in a past entry and thought the other item was extremely important.

I’ve covered the issues raised by golf carts in resident-owned communities in an earlier post.   As those of you that attended our most recent ROC seminar presentations know, golf cart owners may be unpleasantly surprised to discover that their automobile insurance does not cover injuries or damages caused by or to their golf carts.   My earlier post dealt with safety issues and stressed that ROC boards and managers should remind the residents in their communities that golf carts must not be treated as toys and must be used with great care.

I was saddened, but not surprised, to hear that a six year old child in the Lakeland area died this week as a result of injuries she suffered in a golf cart accident.  It might not be a bad idea to post one of the news reports about this tragic death on the bulletin board in your community to remind all residents that great care must always be used in operating golf carts.

I have to confess that I’ve never watched Oprah Winfrey’s show.  However, she wrote a short piece that appeared in last Sunday’s edition of the New York Times and I highly recommend that this column also be posted on the community bulletin board.   I intend to explore how ROC boards, managers (and their attorneys) are all feeling the stress of having to instantly respond to complaints and concerns of residents in a future entry.   For the time being, however, I suggest that we all consider Ms. Winfrey’s message about the dangers of  "multi-tasking"–especially texting and using our cell phones while driving–a well-intentioned warning to concentrate on the most important task at hand when driving–whether that be a golf cart, sports car, or mini-van. 

That task, of course, is to arrive safely at our destination–whether around the corner or on the other side of the country.

As I post this entry, Senate Bill 1196 has been approved by both houses of the Florida Legislature and has been sent to the Governor for his signature.  I’ll let you know if and when he signs the bill and what that means for ROCs in future blog entries.

One of the resident-owned cooperatives we work with recently contacted me with a very interesting question.   This ROC wanted to create a "community garden" on an unused common area and the manager wanted my opinion as to whether the board could authorize this "community garden" or whether a vote of the members would be required.

As many of my blog readers know, the answer to this question turns on whether creating a "community garden" is a "material alteration" of the common areas.  The applicable section of the Florida Statutes for cooperatives states that, unless other procedures are included in the community’s governing documents or such action is expressly prohibited in the articles of incorporation or bylaws governing the community, a ROC may not "materially alter" the common areas of the community unless the action is approved by two-thirds of the total voting interests in the community.   The applicable section of the Florida Statutes governing condominiums has similar language but requires (in the absence of any language in the condominium documents)  the approval of 75% of the total voting interests.

So is this community’s planned "community garden" a "material alteration"? 

While there is no clear-cut rule determining exactly what is and what isn’t a "material alteration," there are a few important factors to consider:

  • The common area in question is currently unused
  • No structure would be build on this common area
  • The nature of the common area would not be substantially changed

Based on these factors, my "gut feeling" is that this "community garden" would not constitute a "material alteration" and the board could authorize this usage without membership approval.

My colleague from our Tallahassee office, Karl Scheuerman, provided me with a copy of a 2003 arbitration decision from Florida’s Department of Business and Professional Regulation, Tilney v. Association of the Fountains, Inc., which determined that a condominium association board’s landscaping project over a portion of the common elements did not constitute a "material alteration".  The arbitrator reviewed and discussed several prior decisions from Florida’s appeals courts and DBPR arbitrators in the process of making his determination.

While the Tilney decision provided me with an additional reason to advise that the "community garden" was not a "material alteration," I suggested to the ROC manager that the best and safest course of action–both legally and politically–might be to obtain membership approval. 

After all, why fight a battle that could have been avoided in the first place–especially if the board knows that a substantial majority of the membership is in favor of the planned improvement–even if it’s not a "material alteration"?

I’ll be finishing a very busy season of presentations on Tuesday morning, April 20, at the Mid-Florida ROC meeting at Country Club Manor in Eustis.  We’ve had great attendance and fantastic responses at all of our recent seminars and I want to thank all of our hosts for the hospitality and our attendees for their participation.  

 

Board members and managers in resident-owned condominiums and cooperatives may recall that tucked away in Chapters 718 and 719 of the Florida Statutes are several provisions that require associations to "retrofit" their "common areas" with handrails or guardrails and fire sprinkler systems or other "engineered life safety" systems.   The statutes provide that these retrofitting requirements may be waived by the members of associations where the common areas are not in a "high rise building," which is defined as "a building that is greater than 75 feet in height where the building height is measured from the lowest level of fire department access to the floor of the highest occupiable story".

ROC board members should note that even if a community does not have a "high-rise building" the members must still waive the retrofitting requirements.   The voting procedures differ for the waiver of the two different types of retrofitting:

  • Florida Statutes Sections 719.1055(5) and 718.112(2)(l) allow for limited proxies, ballots personally cast at a duly called meeting of the members, or a member’s written consent to be used in a vote to waive the requirement to retrofit a fire sprinkler system or other engineered life safety system.
  • However, according to Florida Statutes Sections 719.1055(6) and 718.1085(1), neither limited nor general proxies can be used for a vote to forego retrofitting for handrails or guardrails.  This vote must be made in person at a duly called membership meeting or by execution of a written consent by that member.

The decisions to waive or forego these retrofitting requirements become effective upon the recording of a certificate attesting to such vote in the county where the ROC is located.  The association also must notify the members of the decision to forego retrofitting after the vote–within 30 days after the vote to waive the sprinkler system retrofitting and within 20 days after the vote to forego the handrail retrofitting.

Since the statutes provide that the local authorities that would have jurisdiction over the community buildings cannot require retrofitting of the common areas until the end of 2014, ROCs still have a few years to plan and schedule the membership meeting where these votes will occur.  

Just something to keep in mind during the "off season".  

 

 

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.