Briny Breezes is a resident owned manufactured housing cooperative located in Palm Beach County.

Two of the community’s sea walls that protected the cooperative property needed repairs and upgrades.   The directors of Briny Breezes, Inc., the cooperative association that owns and operates the community, hired an engineer who reported that the required repairs and upgrades to the seawalls would cost approximately $150,000.

While there were adequate funds in the association’s reserve account to pay for these repairs, Briny Breeze’s governing documents clearly prohibited the association’s board of directors from spending more than $30,000 for capital improvements or spending more than $30,000 for replacement of capital assets in any fiscal year.  According to the association’s governing documents, the affirmative vote of at least 51 per cent of the members was required for these expenditures.

Earlier this year, Briny Breeze’s manager asked the Division of Florida Condominiums, Timeshares, and Mobile Homes (the "Division") to determine whether the association’s board of directors could use the reserve funds to pay for the seawall repairs that were needed to protect the cooperative property without obtaining the approval of the association’s members.

The Division, in its Declaratory Statement issued this May, held that the association could use its reserve funds to make the needed repair to the seawalls without a vote of the membership.

The Declaratory Statement cited Florida Statutes Section 719.104(5), a federal bankruptcy court decision interpreting Florida law, several decisions of our state appellate courts and a decision rendered by one of the Division’s arbitrators. 

The Division noted that , even if expenditures result in alterations or improvements to the community’s common elements, it is within the board’s authority to authorize these expenditures without member approval where the expenditures for the alterations or improvements are needed to protect the common elements.

At the same time, the Division did caution that an association’s directors might very well be precluded from unilaterally spending money for upgrades that constituted material alterations to the common elements and went beyond the repairs required to protect the common elements.

The Division concluded that, while the "safest course for the board is to get a unit owner vote", the board should not be limited to "simply repair the sea wall to protect the common elements."

Hopefully, this Declaratory Statement will provide ROCs with some guidance in the future.

I’ll be discussing issues affecting aging members of resident owned communities this week 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".

I’ve written several entries on the risks that ROCs take when copyrighted music is played in their communities.

Last year, the National Association of RV Parks & Campgrounds ("ARVC") introduced a new benefit for its members–a combined music licensing agreement with two of the three major music license companies, ASCAP and BMI.

In connection with this new benefit, the ARVC prepared a very concise and informational "FAQ" sheet for its members.

While most of Florida’s ROCs are not members of the ARVC, I hope you’ll find that FAQ sheet–aptly titled "What You Need to Know About Music Licensing" educational and useful.

On last Saturday’s "Community Matters" radio show, I discussed hurricane preparedness with Ed McCrane, Sarasota County’s Emergency Management chief, and then spoke with State Representative Mike Fasano about the need to change the policy of the Florida Hurricane Catastrophe Fund, which currently may exclude some condominium developments from the Fund’s reinsurance coverage–which has the potential to substantially and negatively impact condominium associations and unit owners throughout the state.  The podcast of that show is now available at the "Community Matters" site.

The recent revisions to Florida’s laws governing condominium associations, cooperative associations, and mandatory homeowners’ associations updated the procedures for producing, inspecting and copying an association’s "official records".

Effective July 1, 2013, an association in Florida’s resident owned communities can satisfy the requirement that it make its official records available for inspection and copying by:

  • making the records available to a member electronically via the Internet or
  • allowing the records to be viewed in an electronic format on a computer screen and printed upon request

Board members and managers in resident owned communities should note that the association is not responsible for the use or misuse of the information provided to a member or that member’s representative when it complies with the requirements to produce official records for inspection or copying unless the association has an affirmative duty not to disclose that information–for example, if that information falls within the category of "protected" official records.

In addition, associations must now allow a member or his or her authorized representative to use portable devices, including smartphones, tablets, portable scanners, or any other technology capable of scanning or taking photographs, to make an electronic copy of the official records instead of the association providing that member or his or her representative with a copy of those records.  The association may not charge that member or his or her representative for the use of a portable device. 

Again, board members and managers should remember that certain information–while part of the association’s official records–is not to be produced to members and great care must be taken to carefully inspect all records and to remove or redact all information that is required to remain confidential or otherwise protected before those records are produced to the member or his or her representative.

When faced with requests to produce records for inspection or copying, an association should strongly consider consulting with its attorney before responding to that request.

We’ll be discussing hurricane preparedness and Citizens Insurance this Saturday from 11 to noon on Community Matters and I hope you’ll listen live or by podcast.

On Friday, June 14, Florida’s Governor signed into law several bills affecting community associations, including House Bill 73.

One of the important provisions of House Bill 73 amends the statutes governing cooperative associations in Florida by requiring board members in co-ops to meet the same certification requirements as condominium association board members.

Florida Statute Section 719.106 will now require a newly elected or appointed board member in a cooperative association to do one of the following within 90 days of that election or appointment:

  1. Certify in writing to the association’s secretary that the board member has read the association’s bylaws, articles of incorporation, proprietary lease (or occupancy agreement), and current written policies, and that the board member will work to uphold such documents and policies to the best of his or her ability, and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members
  2. Submit a certificate that the board member has–within one year before or 90 days after his or her election or appointment–satisfactorily completed the educational curriculum administered by an educational provider as approved by the Department of Business and Professional Regulation’s Division of Condominiums,Timeshares, and Mobile Homes under the requirements established in Florida’s statutes governing condominium associations

This educational certificate is valid and does not have to be resubmitted as long as the board member serves on the board without interruption.

The association’s secretary is required to retain both of the written certifications described above as part of the association’s official records for 5 years after a director’s election or the duration of the director’s uninterrupted tenure, whichever is longer.

The educational curriculum requires that at least four of these topics be covered in sufficient detail:

  • Budgets and reserves
  • Elections
  • Financial Reporting
  • Cooperative Operations
  • Records maintenance, including unit owner access to records
  • Dispute resolution
  • Bids and contracts

The effective date of HB 73 is July 1, 2013.  I’ve been working on an outline of curriculum (those of you that attended FLAROC’s Board Training event in Punta Gorda in March had a preview of that outline) and hope to provide it to the DBPR for approval–and for use in our resident owned community seminars–within the next week.

I’ll keep you posted on this and other important impacts of HB 73 in future blog entries.

As many followers of this blog may already know, House Bill 87 was signed by Florida’s Governor last Friday.  This bill provides community associations with some hope that the foreclosure process–which seems to take an eternity before it concludes–will be expedited and that an association can have a meaningful voice in the foreclosure action. 

I discussed House Bill 87 and several other bills affecting resident owned communities last weekend with lobbyist Travis Moore on our inaugural hour of  "Community Matters," which airs every Saturday from 11 a.m. until noon on Sarasota TalkRadio, WSRQ–1220 AM and 106.9 FM.

In addition to providing our listeners with an explanation of House Bill 87 and its effect on the foreclosure process, Travis summarized a number of other provisions, including the following:

  • Changes to the fees to be paid by communities to the State of Florida for submerged land leases
  • A requirement that mandatory homeowners associations be registered with the State
  • Updates to statutes governing a unit or parcel owner’s right to copy the association’s "official records" which will expressly allow for such copying to occur by use of an iPad, tablet,  iPhone or similar device.
  • Provisions clarifying what information about a unit owner or parcel owner an association can safely include in its membership directory
  • Amendments to the statutes governing cooperative associations that will provide those associations with the same protections in regards to personnel matters and personnel records as found in the statutes governing condominium and mandatory homeowners associations
  • An additional amendment to Chapter 719 of the Florida Statutes requiring newly elected or appointed board members of cooperative associations to meet the same certification or education standards as board members in condominium associations

If you’d like to hear last Saturday’s show–here’s the link to the podcasts for "Community Matters": sarasotatalkradio.com/community-matters/  .  Just click on "read more" and you’ll find the podcast.

We’ll be discussing hurricane preparedness for the next two weeks. I hope you’ll listen live or to our podcasts and I’ll look forward to your questions and your suggestions for future topics for "Community Matters".

I’m pleased to let my blog readers know that I’ll be one of the hosts of "Community Matters," a radio show that will focus on issues and topics affecting resident owned communities.

The show will be airing on WSRQ, Sarasota’s "TalkRadio," each Saturday morning from 11:00 to noon, at 1220 on the AM dial and 106.9 on the FM dial. 

Podcasts will also be available at www.sarasotatalkradio.com.

The first installment of "Community Matters" airs this Saturday, June 8th.  I’ll be speaking with Travis Moore, of Moore Relations, Inc. 

Mr, Moore is a lobbyist who has spent many years representing the interests of residents of community associations in Florida and we’ll be discussing several very important bills passed during the 2013 legislative session, including revisions to the laws affecting foreclosures, copying and producing association records, and membership directories as well as a new law concerning the registration of mandatory homeowners’ associations with the State.

I hope you’ll take the opportunity to listen to the show live or by podcast and will look forward to your questions and suggestions for future installments of "Community Matters."

Earlier this week, Florida’s Insurance Commissioner encouraged homeowners in our state to purchase flood insurance prior to May 1 in preparation for the upcoming hurricane season, which, as you may have read, has been predicted to be very active.

Purchasing or renewing a flood insurance policy prior to May 1 will also allow homeowners to avoid a significant  rate increase scheduled for October 1 of this year.

The Insurance Commissioner noted that Florida homeowners can purchase flood insurance from the National Flood Insurance Program (NFIP) for up to $250,000 for property damage and $100,000 for personal contents and that excess coverage can be purchased for homes valued at more than $250,000.

Many of our neighbors still don’t understand that their homeowners’ insurance policies do not cover damage caused by flooding.  Since flood insurance is readily available to all homeowners and is definitely affordable, the failure to have this coverage is inexcusable.

It would be a shame to incur substantial expenses as a result of damage that would have been covered by this easily obtainable insurance.

Let’s hope none of us need flood insurance during the 2013 storm season–but it’s always better to be safe rather than sorry!

I just finished speaking with the manager of one of the resident owned communities in our area.

An email was received at the community’s email address, allegedly from the Federal Trade Commission.  The subject of the email was "NOTIFICATION OF CONSUMER COMPLAINT" and the email contained a very official looking document advising that a customer had complained "about your business and believes you have contravened the Consumer Credit Protection Act (CCPA)".

The document further stated that "Federal Trade Commission has initiated a formal investigation into this complaint" and asked the association to "consider the details of the enclosed letter"–which conveniently did not accompany the email.   Instead, the document advised the association that the letter (which contained the complaint) could be downloaded from a website listed in the document.

The document advised the association that it was "welcome to contact us regarding this matter" using a form that could be downloaded from another website address.

The document closed with the address of the FTC and its website and warned the association that "the FTC is required to post information about businesses who fail to respond to consumer complaints".

Our firm’s technology professional quickly determined that the email was yet another scam and located this link that describes the scam in detail.  

You’ll note that the Federal Trade Commission advises the recipients of this scam that they should not click on the links to the websites listed  in the email.

Managers and board members of resident owned communities should always be alert for these scams and use common sense–after all, it’s doubtful that, even in this day and age, any agency of the federal government would choose email to notify a business of a consumer complaint.

Our best wishes for a happy and healthy holiday weekend.

We’re now into the busiest part of the "season" for resident owned communities and I wanted to alert all of our blog readers living in west central and southwest Florida that two great events are scheduled for later this month:

  • FLAROC has asked me to participate in a Board Training Session for directors in resident owned manufactured housing cooperatives Thursday, March 21, at River Forest Village in Punta Gorda. Check-in starts at 8:30, the training will run until noon, and we’ll conclude with a question and answer session.  There will be light refreshments provided and there is no charge for this program.   While Florida Statutes still do not require directors in cooperative associations to attend board training, I’d certainly recommend that present or prospective board members take advantage of this free event.  Please contact Mary Danitz from Florida Shores Bank at mdanitz@floridashoresbank.com to rsvp as reservations are required.  Light refreshments will be provided and seating is limited.
  • The very next morning, Friday, March 22, you’ll be able to find me and several other representatives of our firm at the Manatee Convention Center in Palmetto.   We’ll have a booth at the CA Day Trade Show & Educational Expo sponsored by the West Florida Chapter of the Community Associations Institute.  I’ll be part of the "ask the lawyers" panel and will spend the rest of the day greeting ROC members that visit our booth.  This annual event is always fun and educational for everyone.

I hope to see you at River Forest Village on March 21 or the Manatee Convention Center on March 22!