I’m writing this entry from Ft. Lauderdale, where I am attending the Institute on Condominium and Cluster Developments presented by the University of Miami School of Law.   This two day seminar has provided me with a wealth of material for future entries to this blog and has allowed me to spend some time learning and meeting with many of my fellow community association attorneys throughout Florida.   A colleague from our Tallahassee office, Karl Scheuerman, spoke at one of yesterday’s sessions on the many issues facing "subsequent developers" of condominiums and other community developments.  Hopefully, these are issues that your community or association will never have to face.  

Karl and I attended the dinner meeting of the Florida Bar’s Condominium and Planned Development Committee (which is part of the Bar’s Real Property Probate and Trust Law Section) that was held at the end of yesterday’s presentations.    Again, this event gave me the opportunity to discuss with a number of my colleagues problems facing ROCs and potential solutions to those problems.

As my blog followers know, I also attended the convention of the Florida Manufactured Housing Association at the Saddlebrook Resort north of Tampa earlier this month.   This annual event gives the members of our firm that work with the owners of manufactured housing communities the opportunity to network with those owners and many of the companies that provide important services to those communities.    A number of my colleagues from our firm, including Allen Bobo, Jody Gabel, Richard Lee, David Eastman, Karl Scheuerman, Carol Grondzik and I made presentations to convention attendees on a variety of topics, including:

  • Evictions
  • Fair Housing Issues
  • Dealing with Abandoned Mobile Homes
  • How to amend rental prospectuses

It was clear from our experiences at the FMHA convention that the current state of our economy has created an environment that is extremely challenging for community owners, whether they be private investors or ROCs. 

The FMHA is well aware of the importance of resident owned manufactured housing communities in Florida and will be making a concerted effort to encourage these communities to join FMHA and to participate in its activities.  I’ve always felt that the FMHA and the community associations that own and operate manufactured housing communities have many common interests and will be posting details on the FMHA’s increased efforts to bring more ROCs into its organization in the future.

 I’ll be posting the dates, locations, and topics of our upcoming November and December seminars next week.

 

 

 

I’ve always told board members that the residents in their communities elected them to vote on the issues that come before them and not to refuse or decline to vote on those issues.   There are very few circumstances that justify a board member abstaining on an issue and most, if not all, involve situations where the board member would find himself in a conflict of interest if he voted on that particular matter.

The following are not valid reasons to abstain:

  • The board member feels he doesn’t know enough about the issue.   It’s that board member’s responsibility to do his homework about the issue before the meeting.
  • The board member doesn’t want to take an unpopular position or offend any of the residents.  Board members should not be elected because they are nice or will make the easy and popular decisions.   They are elected to properly and prudently make the sometimes difficult and unpopular decisions required  to effectively operate the community.
  • The member, who happens to be the chairman/president, feels he only has to vote if a tie needs to be broken.   In most communities, the chairman/president is elected by only the members of the board while each board member is elected by the entire membership.   I believe that the chairman/president is first and foremost a member of the board that was elected by the entire membership and has been given and accepted the same responsibility of every other board member–which is to vote on every issue that comes before the board, regardless of whether a tie vote needs to be broken.

What is the effect of an abstention?  

  • The 2008 amendments to Florida Statute Section 718.111(1)(b) provide that a member of the board of directors of a condominium association who abstains from voting "on any action taken on any corporate matter shall be presumed to have taken no position with regard to the action."   Apparently, that abstaining member’s vote cannot be counted either for or against the action.  
  • However, this provision is not found in Chapter 719.  Instead, cooperative associations are governed by Florida StatuteSection 719.104(8)(b) which provides that a director who is present at a board meeting is presumed to have assented to the action taken by the board unless  the director votes against such action or abstains because of an asserted conflct of interest.    It would seem that any abstention that is not based on a conflict of interest would be held to be a vote "for" the action taken by the board.
  • It appears that the provisions of either Florida Statute Sections 607.0824(4) or 617.0824(4) will  apply to homeowners associations, depending on whether that particular association is organized as a for profit (Chapter 607) or not for profit (Chapter 617) corporation.   Those sections provide that a director who is present at a meeting of the board or a committee of the board when corporate action is taken is held to have assented to that action unless he either objects at the beginning of the meeting or promptly upon his arrival to holding the meeting or transacting specified affairs at the meeting, or he votes against or abstains from the action taken.   

As you can see, the statutes are not quite identical and can cause some confusion.   My apologies to those of you that caught my earlier entry this morning which did not include the reference to Section 719.104(8)(b).   We’ve talked about this not quite logical provision at a number of our seminars and thanks to the followers of this blog that reminded me of the inconstency between Chapter 718 and Chapter 719.  

In any event, the best way to avoid the questions arising from abstentions is for a board member to vote on the issue unless a conflict of interest prevents him from doing so.

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.

 

 

 

 

 

Several weeks ago I mentioned the educational opportunities offered at the upcoming annual convention of the Florida Manufactured Housing Association at the Saddlebrook Resort just north of Tampa on October 7 and 8.  

I received a memo earlier this week from the FMHA about a "Round Table Discussion" that will be held at the convention at approximately 3:15 p.m. on October 8.   This discussion is entitled "What Works to Fill Homesite Vacancies?" and will cover a variety of methods and ideas that can be used to help communities find prospective residents.

Given today’s economic climate, this is a very timely and important subject for ROC managers and board members.   Please note that this "Round Table Discussion" is open to all FMHA members and if you have questions and want to attend the convention please contact the FMHA at info@fmha.org.

Speaking of "Roundtables," I am in the process of  scheduling our first set of seminars for the "season" to be held in November and December.    We try to have several "roundtable" seminars each year in communities that are located in the geographical areas that we serve and if your community would be interested in hosting one of these events, please contact me.  

As always, we welcome your input in helping us plan the topics for these educational seminars–so if you have any subjects, questions, or issues that you’d like us to cover, please let me know. 

I’ll post the dates, times, and locations of our November and December seminars in the near future.

"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.

   

 

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..

 

 

 

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.

The Florida Manufactured Housing Association’s annual convention is scheduled for October 7th and 8th at the Saddlebrook Resort in Wesley Chapel, Florida, which is just north of Tampa.

Our firm sponsors the welcome reception on the evening of October 7th. This reception is a great way to network with managers and board members from other resident owned manufactured housing ROCs as well as investor owned communities.

The schedule of events for October 8th promises a full day of information that should be very useful to every manufactured housing community.   Topics that will be covered include evictions, Fair Housing,  how to comply with the provisions of Florida’s landlord-tenant laws for manufactured housing communities, and how to deal with vacant homes.  An "Ask the Lawyers" session is also scheduled and I know from experience that the attendees always find this session entertainng and well worthwhile.

The FMHA wants ROCs to take advantage of this great educational opportunity and I’ve offered to help spread the word about this exciting event.   You’ll find the links to the information about the annual convention at the FMHA’s website.  

I hope you’ll consider attending the convention and look forward to seeing you there.

The owner of a company that manages many ROCs throughout the state recently called and asked whether residents who wanted to be candidates for the ROC’s Board of Directors had to first complete a "certification form."   My answer was "it  depends on whether the ROC is a condominium, cooperative, or subdivision."

While there are many similarities in the statutes that govern condominium, cooperative, and homeowners associations, there are also a some very important differences.   The "certification form" requirement is a prime example of one of these differences.

In 2008, Florida’s legislators substantially revised portions of Chapter 718, which governs condominium associations.   Included in these revisions was an amendment to Section 718.112(2)(d)3 which now provides that:

  • The "first notice of the date of the election" for the board of directors be accompanied by "a certification form" that is to be completed by a candidate for a position on the board of directors and that attests that the candidate "has read and understands, to the best of his or her ability, the governing documents of the association and the provisions" of Chapter 718 "and any applicable rules". 
  • This signed "certification form" must be furnished by the candidate to the association by not less than 35 days prior to the election.
  • The "certification form" is to be provided by the Division of Florida Condominiums, Timeshares, and Mobile Homes of Florida’s Department of Business and Professional Regulation.

Inasmuch as (to the best of my knowledge) no candidate for Florida’s legislature is required to sign a "certification form" attesting that he or she has "read and understands" our state’s governing documents, one can be excused for wondering exactly what was going through the minds of our representatives in Tallahassee when this amendment was proposed and passed.

Currently, neither Chapter 719 (which governs cooperatives) nor Chapter 720 (which governs mandatory subdivision homeowners associations) contain a "certification form" requirement for board candidates.  Thus, any ROC that is not a condominium association and that does not have a "certification form" requirement in its governing documents need not provide these forms as part of its election materials nor would a member of one of these ROCs be required to sign that certification form to be eligible to run for the board.

However, rumor has it that our legislators have revisions to both Chapter 719 and Chapter 720 on the agenda for the 2010 legislative session and I’d be surprised if this ‘certification form" was not part of the proposed amendments for both chapters.   Stay tuned for further developments.

Today’s edition of the Sarasota Herald-Tribune has a  very interesting article on how Charlotte County has recovered from Hurricane Charley, which made landfall in the Punta Gorda area as a small but very powerful category 4 hurricane five years ago today, on August 13, 2004. 

There are several manufactured housing communities mentioned in the story and, with one tropical depression and a very strong tropical wave churning off the coast of Africa, I thought this would be a good time to remind ROC residents that a slower than usual start to our annual hurricane season should not give rise to a false sense of security.    The traditional peak of the season is still one month away and as we all know, hurricanes that occur in "slow" seasons (such as Hurricane Andrew, which devastated portions of southeast Florida in late August of 1992) can be just as destructive as those that occur in "active" seasons.  

As always, ROC managers and board members should be aware of the need to prepare for an unwelcome visit from one of these tropical systems.