A set of new regulations created in 2010 under the Americans with Disabilities Act was scheduled to go into effect on March 15, 2012.  Late last week, the deadline for compliance with these regulations was extended for 60 days with the possibility of an additional extension of time to allow for clarification and further discussion of the impact and manner of implementing and complying with these rules.

A portion of these rules created no small amount of uncertainty for ROCs with community pools as these new regulations seemed to require that any "public pool" have at least one (and in some cases two) means of accessibility for persons with physical disabilities. 

What exactly constitutes a "public pool"? 

I’m comfortable with advising the board or manager of a ROC that allows only its residents or the family, tenants, or invited guests to use the pool that the community pool is "residential" or "private" rather than public.

However, pools in communities that host swimming meets open to the public, or communities that are partially or entirely designed for short term occupancy by recreational vehicle owners would appear to fall within the "public" arena and these new accessibility rules would seem to apply. 

I’ve spoken with several communities that don’t know whether or not their pools are "private" or "public" and others that aren’t sure of the type of accessibility equipment required and we’re hopeful that the additional time will provide all of us with the answers needed to determine whether a community needs to bring its pool into compliance with these new accessibility standards and, if so, what equipment will be allowed to meets these standards.

For now, at least, ROCs that need to comply will have some additional time to do so.

Stay tuned and I hope to see some of you at the Expo in Charlotte County on March 27th!

 

Florida’s state senators and representatives have concluded their 2012 legislative session in Tallahassee.

While House Bill 319 was overwhelmingly approved, Senate Bill 680–the companion to HB 319–never came before the Senate for a vote, thus effectively preventing either of these bills from becoming law.

Whether the failure of either bill to make its way out of this legislative session is good or bad is a matter of opinion. 

However, managers and board members in cooperatives should be reminded that, at least for the immediate future, the "status quo" will continue–as will important differences between Florida’s statutes governing cooperative associations and those provisions governing condominium associations (and in many cases, the statutes governing mandatory homeowners associations), including the following:

Newly elected or appointed board members in cooperatives are still not subject to the certification/education requirement found in Chapter 718.

The statutes governing cooperative associations continue to have no "safe harbor" provisions for first mortgagees that take title to a unit through foreclosure or assignment in lieu of foreclosure.

Finally, certain privacy protections recently afforded to owners and employees in condominiums and mandatory homeowners associations were once again not extended to members of cooperative associations and the employees in cooperative communities.

I suspect we’ll be discussing these issues again at the same time next year.  

If you’re attending the PM-EXPO on March 27 at the Charlotte County Harbor Event & Conference Center in Punta Gorda, please stop by our booth and say hello to us!

 

 

On February 28 of this year, residents of Indianwood Golf & Country Club purchased their community, with the assistance of Marty Pozgay’s Florida Community Services Group.

Indianwood is a 596 space manufactured housing community located in Indiantown, which is located in Martin County, west of Stuart and southeast of Okeechobee.  All but 10 of the spaces are currently occupied, and there is an 18 hole par 70 golf course with a pro shop and restaurant.

The resident-owned cooperative association, Indianwood Co-op, Inc., was the purchaser of the community and the sales price was $30,000,000.   Financing was provided by Bank of America.

The President of Indianwood Co-op, Inc. is Karlee Shostrom and she and all of the new owners of Indianwood Golf & Country Club are to be congratulated on this exciting accomplishment.

We’re very pleased to welcome Indianwood to the ROC family and look forward to hearing more about the newest resident owned community in Florida!

I hope to see some of my blog followers at the Manatee Convention Center in Palmetto on March 8 for the always educational and fun Community Association Day and on March 27 at the Charlotte Harbor Conference Center for the Community Association Trade Show planned by PM-EXPO.   I’ll be part of a panel of community association attorneys for CA Day and will be speaking about Reasonable Accommodations and the Fair Housing Act at the Charlotte County event.

 

 

 

Last night’s blog entry focused on the most recent version of House Bill 319 and specifically on two revisions–the addition of the "safe harbor" provisions found in Chapters 718 and 720 of the Florida Statutes to F.S. Section 719.108 and the removal of the "certification/education" requirement for newly elected or appointed board members in cooperative associations.

I just checked the Florida Senate’s website for the most recent version of SB 680, which is the "companion bill" to HB 319 currently making its way through the Senate’s committees in Tallahassee.

Will any followers of this blog be surprised to learn that the current version of SB 680:

Does not add "safe harbor" provisions to F.S. 719.108 and

Includes the "certification/education" requirement for newly elected or appointed board members in cooperatives?

As I posted last night, stay tuned…

As most of the followers of this blog know, Florida’s legislature is currently in session in Tallahassee.

The bill that may be of most interest to community association managers, homeowners, and those of us that provide legal assistance and advice to ROCs-–House Bill 319–has been making its way through the various legislative committees.

The latest version of this bill–as of the close of business on Monday, February 27–has two very interesting "tweaks" that will impact cooperatives:

First, there is now an amendment to Florida Statute Section 719.108 that will extend the "safe harbor" provisions found in the condominium association and mandatory homeowners’ association laws to cooperative associations.  These "safe harbor" provisions will limit the liability of a first mortgagee or its successors or assignees who acquire title to a cooperative unit by either foreclosure or by deed (or assignment?) in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title to the lesser of:

  1. the unit’s unpaid common expenses and regular periodic or special assessments which accrued or came 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.

There’s been a good deal of controversy and discussion about whether this "safe harbor" prevents an association from trying to recover from the mortgagee other costs and expenses, such as amounts charged the association by law firms or other companies trying to collect the unpaid amounts from the delinquent unit owner.  Cooperative associations have, for the most part, not been involved in this battle as no "safe harbor" provisions existed in the statutes governing cooperatives.  

A very curious revision in the most recent version of 319 is the removal of the requirement that newly elected or appointed members of the board of directors of cooperative associations either:

  • sign a document certifying that they have read the association’s governing documents and will faithfully abide by those documents and his or her fiduciary responsibilities to the association in serving on the board or
  • attend and successfully complete a board member certification course that has been approved by Florida’s Department of Business and Professional Regulation.

This requirement was incorporated into Chapter 718, which governs condominium associations, several years ago and was in the first version of HB 319 that I reviewed a few months ago.  I’m not sure exactly why this latest version of House Bill 319 no longer contains this requirement.

In any event, there’s much more to HB 319, and I’ll continue to post entries on its progress.

Stay tuned…

 

It’s no secret that the Fair Housing Act prohibits housing providers from discriminating against individuals with disabilities.   An community association thus must make a "reasonable accommodation" to a disabled current or prospective resident who requires that accommodation to "use and enjoy a dwelling".

We’ve recently been contacted about homeowners in resident owned communities claiming that their animals are "service animals".   One association is currently dealing with a unit owner who had previously been allowed to have a dog in her home as a reasonable accommodation even though this ROC was a "no pet" community.   This unit owner apparently has replaced that dog with another dog and is alleging that this new dog is a "service dog," and can be walked throughout the community, even though the reasonable accommodation granted to the unit owner was conditioned on the dog remaining on the unit owner’s lot while in the community.

The unit owner provided the manager with "Service Dog Paper Work" that included an "identification card" for the pet stating "I’m a Service Dog In accordance with the Americans with Disabilities Act of 1990".  Another card identified the dog by name, date of birth, registration number, and "handler" (identified by the unit owner’s last name).

Becoming a "service animal" requires much more than a few papers, cards, or other items provided by companies gladly accepting the $150 (or more) from pet owners who want to "identify their canine helper" as a "service dog".

Here’s what the U.S. Department of Justice has to say about "service animals" as defined by the Americans with Disabilities Act:

  • Service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities–miniature horses are the only other animals that can qualify as "service animals"
  • Service animals are working animals, not pets
  • The work or task a dog has been trained to perform must be directly related to the person’s disability
  • Finally, dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the Americans with Disabilities Act

In other words, the documents provided by these companies do not–without more evidence–prove that a pet qualifies as a "service animal".

Florida Statute Section 413.08 defines "service animal" and does not specifically prohibit species other than dogs or miniature ponies from qualifying as "service animals" but does require that the animal be trained to perform tasks for individuals with a disability and also specifies that a service animal is not a pet.

We’ve determined that the company that provided this unit owner with the "service animal certification kit" for her pet was not affiliated with the U.S. Department of Justice or any governmental agency charged with enforcing the provisions of the Americans with Disabilities Act. 

Any association confronted with these "service animal" papers should contact its attorney immediately–and any unit owner that has paid for these documents should strongly consider contacting the Federal Trade Commission.

I’d like to hear from other communities that have been confronted with these "service dog" certification papers.

 

Followers of this blog know that I frequently caution that almost all board meetings in resident owned communities must be properly noticed and open to association members.  There are specific provisions prohibiting board members from meeting "behind closed doors" in the statutes governing condominium associations, cooperative associations, and mandatory homeowners associations.

While it’s clear that these statutory provisions focus on ensuring that association members are provided with adequate notice of matters that are to be considered by the board of directors, there’s another very important consideration that can be illustrated by the recent difficulties faced by Susan G. Komen  For the Cure after its decision to no longer offer grants to Planned Parenthood for mammograms was made public.

From what I’ve read about the initial decision, there was little if any input requested from or given by  the many local organizations that help fund. Komen .  In fact, it appears that some of Komen’s board members were unaware of the decision–which had been made in the latter part of 2011. 

As everyone knows, once Komen’s decision became public, a firestorm of negative publicity erupted–and even though Komen apparently reversed its decision shortly after the media picked up on the story, I have to believe that most of us will no longer view Komen in quite the same way as we did before all of this occurred.

My assumption is that no law prevented Komen’s leadership from meeting "behind closed doors" when it concluded that the grants to Planned Parenthood be discontinued.   When a board is allowed to isolate itself from its members it’s all too easy–and unfortunately all too common–to make decisions in a vacuum that prevents any factors or considerations other than those of the board members from being heard..  If one or two of those board members are particularly overbearing, it’s not too much of a stretch to see how a ROC board could find itself regretting a decision made "behind closed doors" once that decision is made public and legitimate concerns of the members are finally heard.

This is a very important "side effect"  of the laws requiring open board meetings and member input at those meetings–no "vacuum" can exist if those laws are followed.   Every resident owned community benefits when decisions are made only after the members have been given the opportunity to have their say.  

I wonder if Komen’s leadership wishes it had given its supporters that opportunity before making its initial decision on the grants to Planned Parenthood

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’re only two weeks into 2012 and I’ve already had the opportunity to make a presentation on conducting elections in community associations for managers and board members on behalf of our local chapter of the Community Associations Institute and speak about the"55 and over" exemption and other Fair Housing issues at this month’s meeting of EPROC at the Colony Hills community in Zephyrhills.   EPROC has grown tremendously in the two short years since its formation and this is in large part due to the efforts of Rebecca Gaddis, who recently accepted a new position with the San Antonio Citizens Federal Credit Union.   Since that’s San Antonio, Florida (not Texas), and she’ll be based out of Zephyrhills, EPROC will continue to benefit from Rebecca’s involvement.  It was very encouraging to see so many communities represented at EPROC’s January meeting and I’ll look forward to returning to their April meeting to moderate a discussion on the various types of community management.

I’m pleased to announce the dates of our next set of seminars for managers and board members in resident owned communities:

  • Tuesday, January 31 at Village on the Greens in Bradenton (formerly known as El Rancho Village–we had a great time at their very well attended "name change" celebration on January 5th!)
  • Friday, February 3 at Camp Florida Resort in Lake Placid
  • Wednesday, February 8 at Bonita Beach Trailer Park in Bonita Springs
  • Thursday, February 16, at Sandalwood Park in Venice

We’ll be covering a number of topics at these seminars, including the following:

  • What every board member and manager should know about buying, selling, and transferring homes in resident owned communities
  • Florida-friendly landscaping
  • Updating the "55 and over" survey in ROCs

As always, we’ll discuss any proposed legislation affecting resident owned communities and leave some time for questions and suggested topics for future seminars.

All of these seminars start at 10 a.m. but many attendees arrive a bit early to enjoy the refreshments and meet and greet attendees from other communities.  We’ll aim for ending these seminars between noon and 12:30. 

Please call Karen Midlam or Kathy Sawdo at our office (941-951-1800) or email them at kmidlam@lutzbobo.com or ksawdo@lutzbobo.com to let us know which of these seminars you’ll be attending, the number of members from your community that will be attending, and whether you’ll need directions to the host community.

There’s no charge to attend and enjoy some refreshments and the company of other ROC board members–and pick up some useful information!

I hope to see you at one of these seminars.

 

 

 

Continue Reading Join us at our next ROC seminars

Based on the responses I’ve received from my recent blog entries and presentations on  fines and suspensions of use rights, it’s clear that these topics are "hot issues" in resident owned communities throughout Florida.

Although the Florida Statutes governing condominium, cooperative and mandatory homeowners associations all recognize an association’s power to fine or suspend use rights of unit owners or parcel owners (or their tenants or guests), I’d suggest ROCs consider the costs and benefits of instituting these procedures.   Board members in community associations should weigh numerous factors when considering whether to use fines and suspensions, including the following:

Do the association’s members want to give any of their neighbors the power to fine them or suspend their rights to use the common facilities?  I’ve been in several communities where the membership has clearly and convincingly expressed the concern that a member may be fined solely because of a grudge or other "agenda" of one of his or her neighbors that happens to serve on that fining or suspension committee.    Regardless of the type of safeguards that an association tries to build into its rules or policies governing the operation of that committee, many residents simply don’t want to give any of their neighbors the power to assess fines against them that may reach $1000.

And what about the homeowners in a resident owned manufactured housing cooperative or condominium that are not shareholders in the cooperative or condominium association?   Those homeowners are not "unit owners" under Chapter 718 or 719 of the Florida Statutes and are thus not governed by the fining and suspension provisions of those Chapters.   Their responsibilities are governed by Chapter 723 of the Florida Statutes and the rental prospectus.  It’s doubtful that many rental prospectuses allow the park owner (in this case, the cooperative or condominium association) to fine a non-shareholder homeowner or suspend his or her use rights–and even more doubtful that any such provision in a rental prospectus would be deemed legal and enforceable under current Florida law.    How does an association’s board of directors justify a situation where the non-shareholders (who are not subject to fines or suspension of use rights) are treated more favorably than the shareholders?    I can certainly see that situation creating a great deal of controversy and making it more difficult for the association to market and sell membership shares in the cooperative, or units in the condominium, to prospective purchasers.

Those are just two points to consider when deciding if a community should institute or maintain a fining and/or suspension procedure.

Remember–just because a community is allowed to have a fining and suspension committee doesn’t mean that the community must have one.

Finally, for those long time followers that recall my entries on the "music police," here’s a link to a story that appeared this week in the Sarasota Herald-Tribune on a federal lawsuit filed by our friends at Broadcast Music Inc. against a tavern in the Manatee county community of Ellenton. 

And on that cheery note, my best wishes to everyone for a very happy and healthy holiday season!