In the past few months, while many of the residents in our communities have escaped Florida’s heat and humidity, our friends at the U.S Department of Housing and Urban Development have been busy expanding the reach of Fair Housing protections.  

Here are a few of HUD’s more notable recent actions on the Fair Housing front:

  • In April, HUD’s Office of General Counsel published "guidance" making it more difficult for housing providers to justify denying a prospective owner or renter on the basis of that applicant’s criminal record.
  • On September 14, HUD issued its final rule on "Quid Pro Quo and Hostile Environment Harassment"–apparently creating new liabilities for a housing provider in certain situations for allowing a "hostile environment" to exist in the community to the detriment of a person who falls within one of the Fair Housing Act’s "protected classifications".
  • Just a few days after that final rule was issued, HUD apparently issued yet another decree–this time providing that persons who speak no or limited English are entitled to Fair Housing Act protections.

In other words, the rules of the Fair Housing game have changed over the summer.   We’re digesting HUD’s activities and plan on focusing our next community association seminars on the challenges of keeping ROC’s compliant with Fair Housing laws.  In the meantime, board members and managers in resident owned communities would be well advised to consult with their legal counsel about any Fair Housing questions they may have.

 

 

I cringe every time a member of a resident owned condominium or cooperative association mentions that an event has been scheduled to "meet the candidates" running for the board of directors of that community. 

It’s clear from the Florida Statutes governing the election of directors in condominium associations and cooperative associations that there is a very specific process that must be followed.  For example, if a candidate requests that the association include an information sheet with the election materials to be sent to the unit owners, that sheet must be no larger than 8 and 1/2 inches by 11 inches, and must be furnished by the candidate to the association at least 35 days before the election.

The applicable Florida Administrative Code sections are even more specific and make it clear that the role of the association is to remain completely impartial in regards to any and all candidates.   Both cooperative associations and condominium associations are expressly prohibited from editing, altering, or otherwise modifying the content of that information sheet and the original copy of that sheet becomes part of the association’s official records. 

The intent that the association remain completely impartial during the election process is also evident in the requirements set forth in the Florida Administrative Code that the association must obtain the consent of two or more candidates before "consolidating into a single side of a page the candidate information sheets submitted by those candidates". 

Of course, the requirements that the ballot itself only indicate the candidates in alphabetical order and that the ballot not indicate which candidate or candidates are incumbents on the board (as well as the prohibition of write-in candidates) is further evidence of the desire for a purely impartial election process free from interference or influence by the association.

Now, what happens if, in the midst of this process, the association decides to sponsor or schedule a "meet the candidates" event–and one or more of the candidates is unable to attend?  Or one candidate is not allowed to speak as long as the other candidates?  Or perhaps the sound system goes out after the first two candidates speak and the other candidates are not able to be heard by all of the members in attendance? 

How about a candidate (or one or more of his followers) that wants to pass out (or does in fact circulate) additional campaign materials at this event?  Can the association allow this at an association sponsored event?  If so, are these materials now part of the "official records" of the association?

Finally, what happens when one of the candidates who is not elected to the board of directors complains that he lost the election because:

  • he was unable to attend the "meet the candidates" event and notified the association but the association refused to reschedule,
  • he wasn’t allowed to speak for as long as the other candidates,
  • other candidates were distributing additional campaign materials at the event and he was not told this would be allowed,
  • the sound system went out while he was speaking, or
  • he didn’t feel he needed to attend the event since he had already provided the association with his information sheet

I’m not sure any condominium or cooperative association wants to find out whether an arbitrator with the Department of Business and Professional Regulation or a judge in one of our county or circuit (or appellate) courts will agree with that candidate when he argues that the association, by sponsoring that "meet the candidates" event, violated the provisions of the Florida Statutes and the Florida Administrative Code that seek to protect and preserve the impartiality of the election process.

Hopefully, ROC boards will consider these concerns when deciding whether to sponsor or schedule "meet the candidates" events in the future.

I was contacted by a board member of a resident owned cooperative earlier this month with a rather interesting situation.  One of the unit owners was videotaping the board meetings and now wanted to broadcast those videotapes on the "in house" channel that served the community.   Was the association’s board required to allow the unit owner to broadcast these videotapes?

The statutes governing condominium, cooperative, and mandatory homeowners associations provide that a member is entitled to videotape board meetings.  For example, Florida Statute Section 719.106(1)(c) provides in part that "any unit owner may tape record or videotape meetings of the board of administration."

However, the right to record or videotape does not create a right to broadcast that tape recording or videotape and there is clearly nothing in any of the applicable statutes or Florida Administrative Code sections that requires the association to allow an association member to broadcast the videotape or recording on the association’s "in house" channel.  

Here are a few reasons why I suggest that a resident owned community not broadcast board meetings (either live or by video or audio replay) on the community’s "in house" channel:

  • Many board members and unit owners may feel inhibited by the knowledge that their every word and action at the meeting will be broadcast throughout the community.  Some people simply don’t feel comfortable speaking or otherwise participating when they are being videotaped.
  • There’s a real danger that board meetings–where the business of the association is supposed to be conducted–will become "media events" or "performances".  While CSPAN certainly has helped open the doors to the workings of our Federal government and the meetings of many governmental boards and agencies are televised, community associations are a different animal--ROC board members are volunteers and Florida’s ‘government in the sunshine" law doesn’t apply.  I’d suggest that many unit owners in a resident owned community would be less willing to serve on the ROC board knowing that the board meetings would be broadcast on the "in house" channel.
  • Unless there is very controversial item on the agenda, many, if not most, unit owners simply don’t attend board meetings.  Unit owner participation is both encouraged by Florida’s statutes and important to the overall health of resident owned communities and my suspicion is that even fewer unit owners will attend board meetings in person if these meetings are broadcast.

I’m also concerned that the taping won’t accurately reflect the meeting–perhaps the video or audio quality won’t be sufficient, or perhaps the person taping the meeting will alter the tape for innocent (or not so innocent) reasons. 

And if the association decides to supervise the taping and broadcasting of the meetings, wouldn’t that tape now become an "official record" of the association?  Does the association really want to be responsible for safeguarding these tapes as "official records" and producing them in response to a unit owner’s record inspection request?

Obviously, if a unit owner wants to make a video or audio tape of a board meeting available to the other members of a ROC he or she can certainly do so–but I’d suggest that an association and its board is better served by not allowing those tapes to be part of the programming on the association’s "in house" channel.