Legal Risks Associated with Biometric Resident Access Systems

May 17, 2012, Posted by Laura Manning-Hudson

Thumbnail image for Laura Manning HudsonCommunity associations are constantly striving to implement new, more effective and more convenient security systems for their owners. One new trend that is starting to replace the magnetic cards, key fobs and code-key number pads controlling resident access is biometrics. These biometrics systems are predominantly fingerprint recognition scanners. While there is a significant legal concern that comes with the use of these systems that community associations should be aware of, there are also contractual measures that may be used in order to address and mitigate these concerns.

There is no doubt that biometrics will become more prevalent in the years to come, as it can be very effective and cost efficient. Biometrics offers owners the convenience of doing away with cards, fobs and codes to gain access to the property. Its deployment costs are becoming very reasonable, and it offers considerable savings by diminishing the need for security guards to monitor and control resident access at all of the entrances into a property.

biometrics.jpgHowever, the inherent problem with these biometric security systems is that they are gathering and storing personal identification information. The U.S. Constitution guarantees individuals the right to privacy and due process, so community associations must be extremely careful with the information collected through biometrics (i.e., fingerprints). If an individual's private information is compromised or provided to any third party - including the government - without due process, it can be found to be a violation of the resident's constitutional right to privacy, which could have significant legal and financial repercussions for the association.

Community associations that are considering using biometric security systems to provide a cost-effective and secure solution for resident access on their properties should understand this particular vulnerability. Associations should work with a qualified and experienced attorney in order to address these concerns with vendors of the biometric security systems. Attorneys can review and add language to the contract referencing that the association has been assured and guaranteed that the information will not be shared and is adequately protected. Realistically, there are no true guarantees that a breach in the vendor's system could never take place and expose the information collected. However, by including indemnification clauses and other language in the contract, associations can work to ensure that they avoid taking on significant legal liability in their deployment of 21st century security systems for residents.

Our South Florida community association attorneys write about important legal and business issues for community associations in this blog, and we encourage association members and directors as well as property managers to enter their e-mail address in the subscription box on the top right in order to automatically receive all of our future articles.

Condominium Associations Have the Right to Access Owners' Residences for Maintenance and Repairs to the Common Elements

May 9, 2012, Posted by Laura Manning-Hudson

Thumbnail image for Laura Manning HudsonWhile Florida law provides that condominium associations have the right to access all units in the condominium for maintenance and repairs to the common elements, many unit owners are often reluctant to provide a copy of the key to their unit to the association. Owners cite a variety of reasons for their unwillingness to provide the association with a copy of the key and allow access to the residence, but in reality there are no valid reasons for owners to avoid complying with this aspect of the state's condominium laws.

Florida law specifically provides that condominium associations have the irrevocable right of access to each unit during reasonable hours when it is necessary for the maintenance, repair or replacement of the common elements or any portion of the unit that the association is required to maintain, as well as to prevent damage to common elements. Most condo association governing documents also include language regarding the right to access the units and requiring owners to provide the association with a copy of the key to the residence for the association to keep.

The most typical use of this right to access the residences is for projects involving work on the balconies and windows. Contractors require access to the units for these projects, and many times they also need to temporarily store the equipment that they are using for the work on private balconies and ground-floor terraces while the projects are underway.

balcony renovation.jpgUnfortunately, even for these important renovation projects, there always seems to be at least one owner who attempts to refuse to comply or insists that the access or equipment storage be restricted in a manner that is not conducive to the completion of the work. Many owners do not realize that the law states that the condo associations have this irrevocable right of access for these purposes, and if necessary the associations can file suit for injunctive relief to gain access to the units of recalcitrant owners and store some of the equipment as required for the work to be completed.

For associations and property managers, it is important to bear in mind that they are not allowed to use the keys to gain access to residences unless it is specifically for these types of projects involving the common elements or to prevent damage to the common elements. For example, if there is a known leak and water is seeping through the walls or ceiling of the space below a residence, the association and management can access the unit to inspect the plumbing and repair the leak in order to prevent further damage. However, if the association simply suspects that there is a plumbing issue, such as a running toilet, but there is no evident leak or property damage, it is not allowed to just access the residence. Instead, the association should contact the unit owner to inquire about the plumbing issue and schedule a time to inspect the fixtures as necessary. Maintenance and repairs of toilets, faucets and other plumbing fixtures inside of the residences are generally the responsibility of the individual unit owners, so the association and management must work with the individual owners to address any such issues.

Whenever possible, the association and property management should contact the unit owner in advance of using their right to access the unit. However, in cases involving property damage of an emergency nature, the association would be able to use the key to access the unit even without advance notice to the owner. It is imperative for associations to keep copies of the keys to all of the units in the building in a secure location with restricted access only for the property manager and/or specific board members. Condominium associations that do not have copies of keys to all of the residences in their buildings should consider adopting a rule requiring that the unit owners provide them with copies of the keys.

Associations facing unit owners who refuse to provide a copy of the key or grant access to their unit as required by law should file a petition for arbitration with the Division of Condominiums to force the owners to comply. Because the law is very clear about this irrevocable right of access for condominium associations for the purposes described in this article, they are virtually guaranteed to prevail in these arbitrations. Filing a lawsuit against the owner for injunctive relief to access the residence is also possible for extreme cases in which the owner refuses to comply with the arbitration ruling.

Concerns for Associations Over Neighborhood Watch Programs Spurred by Trayvon Martin Case

May 2, 2012, Posted by Roberto C. Blanch

Thumbnail image for Roberto Blanch.JPGIn the wake of the tragic death of Trayvon Martin, associations throughout the country are now reassessing their involvement in neighborhood watch programs in their communities. My comments to a reporter with the Associated Press on the matter were published in a recent article that appeared in news outlets nationwide (click here to read the report), and it now appears likely that Martin's parents will be filing a wrongful death lawsuit against the community association.

In reaction to this and other news reports about the legal implications of the actions of neighborhood watch volunteers within community associations, the Community Associations Institute (CAI) recently issued a press release with helpful guidelines and recommendations for community associations that wish to implement watch programs manned by volunteer residents in their communities. The press release, which can be accessed by clicking here, stipulates that associations should work with their local police department to implement these programs, create a process for recruiting responsible volunteers who will follow all of the written procedures for the security measures, and continuously reinforce these procedures and the do-not-engage rules with the volunteers. Our firm is very active with the South Florida CAI chapters, and we applaud the organization for issuing this press release to help associations gain a better understanding of the proper procedures for implementing neighborhood watch programs in their communities.

Security has traditionally been one of the most important considerations that associations feel compelled to address, but budget constraints limit their ability to hire professional security guards for on-site monitoring and protection for their residents. watch program sign.jpg In response, many associations resort to creating neighborhood watch programs, which are typically comprised of volunteer owners who agree to keep a watchful eye for suspicious activity.

The Trayvon Martin case illustrates the concerns for associations that organize their own watch programs. In light of this tragic case, many associations are likely to avoid partaking in the organization and implementation of these programs, because doing so could result in significant liability for the association. Notwithstanding these concerns, if associations feel compelled to participate in the organization of a watch program and endorsing it in their community, they should do so with the utmost precautions detailed in the CAI release. These include organizing workshops with their local police department to establish procedures and training for the individuals who volunteer to participate in order to help ensure that they limit their involvement to watching and listening for suspicious activity and contacting the police when necessary, rather than taking on active duties to follow and engage individuals who are suspected of being involved in criminal activity. It is also important for the associations to stress in their written procedures that these individuals are not allowed to conduct armed patrols in the community.

In addition, the associations should consult with their insurance carriers and agents to determine whether they are covered for liabilities that may be caused by the actions of the watch volunteers, who should be vetted by the association with a criminal records background check. If the association learns of any questionable conduct or history of criminal activity by the volunteer, they should take immediate steps to disallow any involvement in the watch program by the individual.

There are many reasons why associations should avoid formally creating these watch groups and leave it up to the individual owners to band together to develop their own efforts outside of the auspices of the association. However, for associations that cannot or will not distance themselves from the formation of the watch groups, they should follow these and other guidelines, including those suggested by CAI, and consult with their own attorneys in order to limit their potential liability to the greatest possible extent.

Responding to Requests for Permission for Service Animals from Residents

April 13, 2012, Posted by Laura Manning-Hudson

Thumbnail image for Laura Manning HudsonRequests by residents for permission to keep service animals in their units are becoming more and more common throughout community associations in South Florida. In many cases, the requests are for emotional support animals, and the resident's disability is not readily apparent. Even though these requests have become fairly common, many no-pet communities remain uncertain as to how they should respond, especially when the resident skirts the rules and brings the animal into their unit under the cover of darkness.

Associations facing this scenario should avoid knee-jerk denials of requests for permission to keep the animal without first requesting additional information from the resident. By law, associations are entitled to ask the resident about the nature of the disability and other pertinent information to enable the association to determine if the request is legitimate and whether the dog is a necessary accommodation in order for the resident to be able to use and enjoy the dwelling. A flat-out denial without any evaluation or request for additional information will open the community up to a successful fair housing discrimination complaint by the resident.

Thumbnail image for Service Animals (2).jpgAssociations are also entitled to inquire about how the disability affects the resident's major life activities (walking, breathing, working, seeing, hearing are examples of some defined major life activities), and how the animal assists the individual with this major life activity that is impaired by their disability. Associations may also request that the resident provide this information from their doctor.

If a resident does not respond to the association's request for information regarding the disability, then, in the case of a no-pet building, it is reasonable for the association to proceed with the filing of a petition for arbitration with the Division of Florida Condominiums seeking removal of the animal from the premises. If the resident fails to provide the requested information and instead files a fair housing discrimination complaint, the association will be able to demonstrate that it never declined to permit the service animal but simply asked for more information that was not provided.

The most difficult disabilities that associations grapple with are those disabilities that are relieved by emotional support animals as opposed to a service animal. However, just because the disability is not readily apparent, but rather psychological in nature, does not mean that the resident's claim is bogus or deniable. If a resident is being treated for depression, especially if they have lost a spouse or loved one and are receiving psychiatric therapy and perhaps also medication, it is difficult to deny a doctor's claim that the animal provides the emotional support that is necessary for them to perform the most basic major life activities such as going to work, buying the groceries and even simply just getting out of bed.

Associations must keep in mind that it is the resident's burden to prove the disability and that the relief provided by the service animal is necessary to afford them an equal opportunity to use and enjoy the dwelling. Associations should always request and evaluate all of the necessary information in order to make an informed decision as to whether to grant permission for the animal.

A Review of the Election Process at Annual Meetings

March 27, 2012, Posted by Laura Manning-Hudson

Thumbnail image for Laura Manning HudsonSpring is typically the time of year when condominium associations hold their annual meetings and elections. While many areas of the Condominium Act defer to association's governing documents, the laws governing the board member election process are black and white and must be strictly adhered to. It is imperative that an association follow the election process exactly as it is detailed in the statute in order to avoid the possibility that the entire election be invalidated after a challenge.

Of course, the process begins with the proper notices. The first notice of the annual meeting and election must be distributed to the owners no later than 60 days prior to the date of the annual meeting and election, and the second notice must be sent out no later than 14 days prior to. Failure to adhere to these deadlines could render the election invalid. The notices must include the annual meeting date, time and location. The first notice must also provide the deadlines for owners to submit their notices of intent run for the board. An owner desiring to be a candidate for the board must submit their notice of intent 40 days prior to the election, failing which, their name cannot be included on the ballot. For those owners who submit notices of intent to be a candidate, the statute provides that they may submit a resume at least 35 days before the scheduled election.

For the election itself, the process detailed in the statute is exceedingly clear. In order to maintain the owners' right to privacy, the owners should place their actual ballots sealed inside of an inner envelope that is marked "Ballot Only." That inner envelope should then be placed into an outer envelope that has the owner's name, unit number and signature.

meeting vote.jpgIn order to have the election (i.e., open and count the ballots), at least 20 percent of the membership has to cast a ballot. After counting the envelopes cast and verifying that the 20 percent threshold has been met, volunteer members who are not related to anyone running for the board should be appointed to open the envelopes and count the votes. These volunteers should first open the outer envelopes and separate inner "Ballot" envelopes. Then the inner envelopes should be opened and separated from the ballots before counting the votes. It is actually not a problem if there is no inner envelope, as owners are allowed to waive their right to privacy for their vote. However, the outer envelope with the name, unit number and signature is absolutely imperative or the ballot cannot be accepted.

It is generally recommended by most experienced community association legal counsel to have the association's attorney attend the annual meeting to verify that every facet of the election process is followed to the letter. For condominium associations that may not have their attorney attend any other board meeting through the course of the typical year, they would be well advised to have their attorney attend and certify the annual meeting and election. Also, keep in mind that new board members are now required by the State of Florida to attend an approved board member certification course or submit written verification to the association secretary within 90 days of being elected or appointed. Our firm regularly conducts complimentary Board Member Certification seminars and webinars, and we encourage new board members to contact us or visit our firm website for more information or to RSVP.

Are Your Community's Records Accessible to Owners?

February 24, 2012, Posted by Roberto C. Blanch

Thumbnail image for Roberto Blanch.JPGCommunity associations often fail to comply with the requirement under Florida law to provide owners with timely access to official records or responses to inquiries, and these violations can expose the associations to costly penalties and legal expenses. The applicable laws provide that association official records shall be made available to owners within days of the submission of a written request (5-10 days depending on the type of community). Failure to provide access to the records within the time specified by the applicable laws may create a rebuttable presumption of a willful failure to comply with the law, which can subject an association to damages.

Florida statutes include the following among the list of records that associations are required to maintain: a copy of the plans, permits, warranties, and other items provided by the developer; photocopies of the declaration, by-laws, articles of incorporation and rules and regulations; a current roster of all owners; insurance policies; and financial records. Condominium associations must maintain these official records within the state for at least 7 years and make them available for inspection to a unit owner within 45 miles of the condominium property or within the county in which the condominium property is located.

locked info.jpgThere are also several types of association records which are not accessible to owners, such as: records protected by the lawyer-client or work-product privilege; information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit; personnel records of association or management company employees; medical records of unit owners; and certain personal information of the owner, when consent for disclosure is not provided by the owner (e.g., social security numbers, driver's license numbers, credit card numbers, e-mail addresses, telephone numbers, and other contact information). Boards should ensure that protected records are not disclosed during records inspections.

With regard to responses to written inquiries, Florida law requires condominium and cooperative boards to respond within 30 days of receipt with either a substantive response or a reply indicating that a legal opinion or advice from the Division of Condominiums has been requested. If the board requests advice from the division, the board shall, within 10 days of its receipt of the advice, provide in writing a substantive response to the inquirer. If a legal opinion is requested, the board shall, within 60 days after the receipt of the inquiry, provide in writing a substantive response to the inquiry. Costly consequences may result from a failure to provide a timely substantive response to the inquiry.

Associations may adopt reasonable rules regarding the frequency, time, location, notice and manner of record inspection and copying. Boards may also adopt reasonable rules regarding the frequency and manner of responding to inquiries, and association governing documents may also contain additional restrictions governing the possible rules to be imposed.

Community associations should consult with experienced legal counsel to avoid the pitfalls of untimely responses to records requests or improper responses to owner inquiries.

Helpful Guidelines for Leasing Units Acquired by Community Associations

February 21, 2012, Posted by L. Chere Trigg

Thumbnail image for Chere Trigg.jpgFive years ago, it was rare to see community associations take title to properties using their lien and collection rights. In years past, it was also rare to see community associations leasing newly acquired units in order to recoup past-due fees and assessments from delinquent owners. In light of the increase in association foreclosure actions however, it has now become commonplace to see associations become unit owners, as bank foreclosures are constantly delayed and properties that could yield significant rental income are sitting idle in foreclosure limbo. Community associations that foreclose their claims of liens and take ownership of residences in their communities should be mindful of these helpful guidelines when considering whether to offer these residences for lease.

Prior to entering into lease agreements with tenants, it is important for community associations to review the provisions of their governing documents in order to determine whether there are any restrictions governing rentals. Once a community association acquires title to a unit or home, the association assumes the responsibilities and obligations in the governing documents that apply to property owners. Therefore, associations that become property owners are not exempt from complying with the leasing rules and restrictions set forth in the governing documents. Community associations should be careful to follow the leasing restrictions promulgated for property owners in order to avoid challenges from owners alleging selective enforcement. If, for example, the community association has a tenant approval process that includes a background check, application, screening fee and common-area security deposit, the community association should follow and document each and every step in the screening process prior to approving and entering into a lease agreement with a prospective tenant.

Community associations should also work with experienced legal counsel who is able to draft a lease agreement that incorporates sufficient protections for the association in the lease transaction. Residential lease agreement.jpg For instance, if an association intends to lease property that is subject to a pending lender foreclosure or a superior mortgage lien, the lease agreement for the property should disclose the superior lien interest. The lease agreement should also include releases of liability in order to protect the community association from legal action by the tenant in the event the lender foreclosures its superior lien and the tenant is required to vacate the residence. Although the "Federal Protecting Tenants at Foreclosure Act" provides that foreclosing lenders must give tenants at least 90 days prior notice if the lender intends to terminate the tenancy once it takes possession of the property, an association could be exposed to liability if the potential foreclosure is not disclosed to the tenant and proper safeguards are not in place in the lease agreement to protect the association's interests.

The lease agreement should also include provisions addressing tax certificates that may be issued for outstanding property taxes. Since governmental tax liens are superior to community association liens, these tax liens are not extinguished by association foreclosure actions. Although a community association is not liable for delinquent taxes that accrue prior to the association acquiring title to the property, the unpaid property taxes could lead to tax certificates being issued and sold through tax sales or auctions. If the tax certificate is not redeemed within two (2) years after it is issued (i.e., satisfactions of all delinquent taxes, including interest and costs), the purchaser of the tax certificate can apply for a tax deed to the property. Once a tax deed is issued, the grantee of the tax deed is entitled to the immediate possession of the property, and the tenant will most likely be required to vacate the residence. Therefore, it is essential that the terms of the lease agreement also incorporate adequate disclosures to the tenant and provisions to protect the community association in the event of a tax sale.

It is also important for community associations to maintain adequate property and casualty insurance for the residences that the association intends to lease. Community association boards should consult the association's insurance agent in order to ensure that the association has a landlord insurance policy or some other level of insurance coverage to protect it against damages to the improvements within the residence, personal injuries that may occur within the residence, and damages and claims arising due to the acts or omissions of the tenant. Community associations leasing properties should also require that their tenants maintain renter's insurance policies, and that the association is named as an additional insured and certificate holder on the tenant's policy. Furthermore, evidence of the tenant's insurance should be kept as part of the community association's records.

Community associations should be very aggressive in their approach to using their lien and foreclosure remedies to take title to properties and rent them in order to recover past-due fees and assessments. By using these guidelines and working with experienced counsel to develop and negotiate the lease agreements, associations can effectively lease these residences in order to help to recover from the foreclosure crisis.

The Laws Governing Condominium Association Meetings and Meeting Notifications

February 16, 2012, Posted by Ivette Machado

Ivette Machado Gort photo.jpgOne area of the law which our community association lawyers get asked about on a regular basis is the notice requirements for the various types of condominium association board meetings. Condo associations must strictly follow the statutory requirements for noticing board meetings in order to avoid potential legal complications. This article will serve as a refresher for condominium association board members and unit owners on compliance with the basic laws governing notification of association board meetings.

There are two levels of notification which are required by law for different types of condominium association board meetings. For all general board meetings that must be open to the unit owners, the minimum standard requirement is that the notice with the corresponding meeting agenda ("Notice") be posted at least 48 hours immediately prior to the meeting. The association must post and maintain the Notice in a conspicuous place on the condominium property, and the Notice must specifically identify the agenda items that are slated for discussion.

However, some board meetings must be noticed 14-days in advance. The notice for such meetings must be posted on the condominium property as well as delivered to each owner. CA meeting notice.jpg While Section 718.112, Florida Statutes, does not require the Notice to be mailed, we highly recommend it given that the post office may provide proof of the mailing, which may become necessary if the distribution of the notice is called into question. Further, many owners do not reside in the building and have provided another address for all association correspondence, making personal delivery impossible in some instances. This 14-day Notice is required for board meetings involving discussion and voting of proposed annual budgets of an association or revisions to such budgets, non-emergency special assessments, establishment of the deductible for property/casualty insurance, or changes to the association's rules regarding unit use.

Exceptions to the above-described meeting notice requirements may apply for emergency board meetings. However, these meetings are generally limited to emergencies that may result in harm to persons or property.

Closed meetings of the board which are not open to unit owners are limited by law only to meetings with the association's attorney with respect to proposed or pending litigation, when the meeting is held for the purpose of seeking or rendering legal advice, or meetings of the board alone to discuss personnel matters. While the law allowing for such closed meetings does not speak to a notice requirement, as a conservative measure, we recommend that the Notice be posted in a conspicuous place on the condominium property at least 48 hours prior to the meeting. The notice for such meetings should clearly indicate that it is a closed and private meeting of the board.

Should the board fail to notice meetings in accordance with the requirements of The Condominium Act, the board may be required to re-convene any meetings which are found to be non-compliant with the statutory requirements, and any votes and decisions made during such meetings may have to be repeated. Boards found to be repeat offenders may be fined by the state's Division of Condominiums. Additionally, decisions that are made during the improperly noticed meetings can be called into question, and owners who have been adversely affected by board actions can mount challenges. Such unit owner challenges may result in litigation, which is time consuming and costly to associations. There is also the potential that prospective owners will look into the complaints filed with the Division of Condominiums against the association, possibly raising a red flag in the minds of potential buyers as to the desirability of owning a unit in the condominium.

Associations and their boards should bear in mind that the majority of their board meetings will only require the 48-hour posted Notice, so compliance with that aspect of the meeting procedures should be fairly simple and straightforward. However, there will be instances in which Notice of a meeting must be posted conspicuously on the condominium property and mailed to each unit owner at least 14 days prior to the meeting, or in which the association's governing documents require a different procedure regarding the issuance of a board meeting notice. If uncertain as to which notice requirements are applicable, it is advisable to contact the association's legal counsel for guidance.

Our community association lawyers write about important legal matters for condominium associations and HOAs in this blog, and we encourage association directors and members as well as property managers to enter their e-mail address in the subscription box at the top of our blog in order to automatically receive all of our future articles.

Are Your Property Improvements Material Alterations?

February 7, 2012, Posted by Roberto C. Blanch

Thumbnail image for Roberto Blanch.JPGBefore commencing a new project or improvement to an association's property, it is essential for community association board members to review and follow the procedures which are required. Florida statutes restrict the ability of board members to authorize certain alterations to their community's property. For instance, the applicable statutes provide that condominium board members in Florida cannot effectuate material alterations to the common elements without the approval of 75 percent of the voting interests, unless otherwise provided in the association's governing documents.

Condominium associations in Florida have been required to obtain unit owner votes for improvements as minor as painting the bottom section of columns in a garage in order to make them more visible to the drivers. Other precedential examples of "material alterations" requiring unit owner votes have included the redecorating of common-element facilities, painting the exterior of buildings, and changes to roofs or pool-deck flooring.

The governing documents for most community associations will contain provisions addressing how to proceed with making alterations. Some documents may provide that the association's board alone is authorized to proceed with making the alteration. Others may set monetary limits as to alterations that may be effectuated by board vote alone, and some require a unit owner vote but at a lower approval percentage than what is statutorily required.

pool deck renovation.jpgHowever, in certain situations, material alterations have been permitted without unit owner votes, such as alterations which are required to protect the safety of residents. In such example, a condominium was permitted to have a fence installed in order to protect against a high volume of documented criminal activity. Material alterations have also been permitted without unit owner votes to provide for the installations of "better systems." For example, a condominium association was allowed to install a new pool deck surface because it was heralded as being a more economical system to maintain and repair, and it would make repairs to underlying common-element components more affordable and practical.

To a great extent the restrictions pertaining to material alterations do not apply to homeowner associations, given that the Florida Statutes governing HOAs do not contain these same types of restrictions. However, some homeowner association governing documents do contain restrictions to alterations of common areas and association property.

Community association boards should consult with legal counsel to ascertain the extent to which they are required to obtain a vote of the owners with regard to a project, and if so, whether any recognized exceptions exist. This will help them to avoid the consequences of not getting the required vote, which may include having to get the vote and/or revert the alterations to their pre-alteration condition if the vote is not obtained.

Laws Governing Recording, Speaking at Community Association Meetings

January 26, 2012, Posted by L. Chere Trigg

Chere Trigg.jpgCommunity associations strive to maintain compliance with all of the laws governing board, committee and membership meetings, but unfortunately disputes pertaining to meetings are not completely uncommon. This article is meant to serve as a primer on the laws governing the rights of members to attend, speak at and record meetings, which are some of the most troublesome problem areas involving the meeting laws for associations.

Florida law provides that either owners and/or their authorized representatives have the right to attend association meetings that are open to the membership. Generally, tenants, guests or relatives who are living in the residence cannot attend such meetings unless the owner designates them as their proxy holder for meetings (if the association's governing documents permit non-owners to serve as proxy holders or the non-owners have a properly executed power of attorney).

Members and/or their authorized representatives also have the right to speak at association meetings. However, they are restricted to speaking only about the designated agenda items for that particular meeting. Although most meetings are open to members, members and their authorized representatives are prohibited by law from being able to bring up and discuss new issues that are not listed on the duly posted agenda for the meeting. In addition, boards are allowed to adopt rules and regulations for speaking at meetings, such as imposing time limits on speeches and comments, limiting the number of times an individual may address a specific agenda item, requiring the raising of hands in order to be recognized, and even requiring the submission of written requests in advance of the meeting. Further, for homeowners associations, the statute specifically limits owner speeches on agenda items to three minutes, provided the owner submits a written request to speak to the association prior to the meeting.

Bear in mind that condominium unit owners can petition the board to include specific items on the agenda for the next board meeting. However, in order to do so, the petition must be signed by at least 20 percent of the voting interests of the association. Upon an association's receipt of a petition signed by a sufficient number of owners, the association must hold a meeting of the board of directors within 60 days. It is also important for associations to be mindful that owners cannot disrupt the meetings to distribute petitions in order to solicit signatures, but they are allowed to distribute and seek support for their petitions immediately prior to or after a meeting. In addition, while the board is required to place the requested item or topic on the agenda for the next board meeting, the law does not require the board to take a vote or any other action with respect to the matter. Also, for homeowners associations, owners are limited by statute to speaking for a maximum of three minutes on items that have been added to a meeting agenda by written petition.

videographer.jpgOwners and their representatives are also allowed to record open meetings using audio and/or video equipment. For condominiums, in addition to the rules that may be promulgated by the associations from time to time, owners are also subject to the rules for recording meetings set forth in the Florida Administrative Code. For instance, pursuant to the Code, owners are only permitted to utilize equipment that does not produce distracting sound or light emissions. Condominium boards also have the right to regulate video and/or audio recording at the meetings, such as having owners give written notice in advance of the meeting of their intent to tape record or video tape meetings, requiring that the equipment is set up prior to the start of the meeting, and requiring that the videographer not move around during the course of the meeting.

It is also important to point out that the laws enabling owners to attend, speak at and record meetings exclude those meetings between the board and the association's attorney to discuss proposed or pending litigation and meetings to discuss personnel matters. Additionally, committee meetings are also open to owners and are subject to the same laws allowing them to speak at and record the proceedings.

By diligently following the applicable laws and setting clear rules for speaking at and recording meetings, associations can help to make their meetings run as smoothly and effectively as possible.

A Guide on the Turnover Process for Community Associations

January 26, 2012, Posted by Laura Manning-Hudson

Thumbnail image for Laura Manning HudsonCommunity associations may only have to go through it once, but the turnover of the association from the developer to the unit owners is of critical importance for the long-term financial health of associations. Here is a helpful overview for the community associations that are now undergoing the process:

Turnover, which governs the transfer of control of the association from the developer to the unit owners, begins with granting the unit owners a director seat on the board of directors when the developer reaches a set percentage of units sold and closed. If the community's governing documents do not specify, then the developer must adhere to the statute which provides that turnover must take place within three years after 50 percent of units are conveyed to purchasers, within three months after 90 percent of the units are conveyed, or within seven years after the recording of the declaration of condominium. After these trigger dates, unit owners other than the developer are entitled to elect at least a majority of the board of directors.

Pursuant to Florida law, the developer has to "turnover" all of the association's documents to the unit-owner controlled association. These include, but are not limited to, the original recorded declaration of condominium, articles of incorporation and bylaws, the minute books, financial records, bank accounts and statements, personal property of the association (e.g., indoor and outdoor furniture, office equipment, computers, etc.), and all of the construction plans and specifications including a list of names and addresses of all of the contractors, subcontractors and suppliers utilized in the construction or remodeling of the condominium. iStock_000004444042Medium.jpg The developer must also provide copies of all of the insurance policies, certificates of occupancy, permits, warranties, unit-owner roster, and all of the contracts that the developer controlled association may have executed for services such as for management, cable, telephone, security and other services.

Two of the most critical items that must be provided by the developer to the unit owner controlled association are an inspection report, which must be completed and signed by an architect or engineer, and a financial audit, which must be prepared by an independent certified public accountant. The inspection report must consist of a detailed list of the required maintenance, useful life and replacement costs for the roof, structure, fire protection systems, elevators, heating/cooling systems, electrical, plumbing, pool, pavement, drainage, irrigation, and paint. If the unit owners are already seeing problems with any of these elements as the report is being issued, they must immediately compare what they are actually seeing and experiencing with the information in the report in order to determine if there is a defect.

For the financial report, the developer's accountant must complete and submit a detailed audit in order to determine whether expenditures were for association purposes and if the billings, cash receipts and related records reflect whether the developer was charged and paid for the proper amount of assessments. If the association disagrees with the audit or wishes to verify the sums that the developer's financial audit shows, the association should immediately retain its own accountant to evaluate the audit. This should also be the same approach with the inspection report, as associations that believe there is a defect that is overlooked in the developer's report should hire their own engineer to complete inspections and submit a report that addresses the construction issues. Both of these reports as well as all of the records above are required to be turned over to the association within 90 days after the date of turnover, otherwise the developer could face a lawsuit in which it will very likely be made to immediately provide the reports as well as pay the association's legal fees in the matter.

Associations also have to go through the process of the resignations of the previous directors under the prior administration as well as the transfer of the bank account(s), which will require new signature cards for the new officers. Associations should also carefully review and assess the contracts that the developer has entered into in order to determine their duration and termination provisions, as vendors may have sold the developer on long-term contracts. However, the Condominium Act provides that unit-owner controlled associations can cancel long-term contracts entered into by the developer with a 75 percent vote by the members.

In general, associations would be well advised to immediately address any construction or financial issues with the developer during the turnover process rather than afterwards. The longer that an association waits before addressing any construction issues, the easier it becomes for the developer to be able to claim that the problem may be due to improper maintenance rather than a defect for which it could be liable. Our attorneys work very closely with community associations going through the turnover process, and we encourage association directors and members to contact us with any questions about the process.

South Florida Municipalities Starting New Trend to Force Homeowners to Pay for Code Enforcement Repairs

January 19, 2012, Posted by Salvador A. Jurado, Jr.

Thumbnail image for Salvador Jurado Gort Gray.JPGSeveral municipalities in South Florida now appear to be starting a new trend that is likely to gain momentum in the months and years to come. These municipalities, which include West Palm Beach, Palm Beach County, Hallandale Beach and Sunrise, have changed the manner in which they bill homeowners for code enforcement repairs in an effort to force the owner to pay or face the possibility of losing their property. With so many abandoned properties winding their way through the slow pace of the foreclosure process, this change is likely to receive significant consideration and approval by many municipalities in the months to come.

It is no secret that many homes located throughout communities in South Florida, including those in homeowners associations, have been abandoned in the aftermath of the foreclosure-fueled housing meltdown. These abandoned homes take a huge toll on neighborhood property values. Many of these properties have become eyesores with broken windows, doors and fences, making them a safety and security hazard for the community at large. When this happens, HOAs and homeowners in communities without associations should contact the code enforcement department of the local municipality to request that the necessary inspection and repairs be made.

iStock_000007544792Medium.jpgTypically, municipalities place liens on the property for the cost of the repairs. But with abandoned homes it often takes years to collect. Now, the municipalities mentioned above have approved new measures to add the costs of the repairs to the property owner's tax bill, which must be paid annually or the owner risks losing the property.

Other South Florida municipalities, many of which presumably face significant sums in property maintenance liens on abandoned homes, are bound to carefully consider this measure, as it is likely to be met with widespread approval by local taxpayers and property owners who have been footing the bill for the repairs to abandoned homes. The change should make it much easier for municipalities to continue to maintain and repair abandoned properties without the fear of taking on additional expenditures that may not be recouped for years.

Our attorneys will continue to monitor and write about important issues for South Florida communities and homeowners in this blog, and we encourage community association members, directors and managers to add their e-mail address in the subscription box on the right in order to automatically receive all of our future articles.

Appellate Ruling Enables Association to Selectively Enforce its Rules Due to Specific Language in its Declaration of Covenants

January 11, 2012, Posted by Stephanie M. Chaissan

Thumbnail image for Stephanie Chaissan SRLDS.jpgA recent decision by the Fourth District Court of Appeal has the potential to be misconstrued by community associations to mean that they can arbitrarily and selectively enforce their governing documents against members. In the case of Heath v. Bear Island Homeowners Association, Inc., the appellate court upheld the lower court's decision in favor of Bear Island Homeowners Association, noting that a clause in the association's Declaration of Covenants and Restrictions specifically stated that it was not required to seek enforcement of its declaration in connection with all violations.

Most community association attorneys, including those at our firm, counsel their clients to avoid acting arbitrarily in the enforcement of their rules and other governing documents because it could lead to effective legal defenses by owners challenging the association's enforcement actions. Associations are required to enforce their covenants equally against all owners, and the failure to do so may result in an owner claiming that the association has engaged in "selective enforcement." By enforcing its governing documents only against some owners, while allowing others to commit violations without fines or other sanctions being imposed, an owner may be able to defend against an enforcement action by claiming that the association has not equally enforced its documents. Additionally, there have been cases in which owners have prevailed in court by arguing that their association waived its right to enforce a specific provision of the covenants because it had previously neglected to enforce it against other members.

4th DCA photo.jpgIn the recent Bear Island decision, the court based its ruling on the specific language of the association's Declaration of Covenants, which plainly stated that the association "may, but shall not be required to, seek enforcement of the Declaration." The plaintiff in the case, who was a unit owner and a member of the association, petitioned the court for an injunction to force the association to enforce the terms of its declaration against other owners who had modified and improved their properties without first seeking prior approval by the association. Due to the specific language in the declaration, the court found that the plaintiff did not have a clear legal right to injunctive relief.

Associations should avoid reading more into this case than what is actually there. The ruling applies only to the appropriateness of injunctive relief to force an association to enforce its governing documents when the association's declaration specifically states, in plain and clear language, that the association is not required to seek enforcement. Community associations, including those with this or similar language in their declarations, should continue to act equally towards all members and avoid arbitrary enforcement of their governing documents, as the failure to do so could continue to result in owners successfully defending against an enforcement action or challenging the association's actions.

This ruling is bound to receive a fair amount of attention, and we encourage associations with questions about its applicability to their enforcement actions to consult with our community association attorneys or their own qualified and experienced legal counsel.

Rule Change Has Significant Implications for Mediations Involving Community Associations

January 3, 2012, Posted by Stephanie M. Chaissan

Stephanie Chaissan SRLDS.jpgA change to the Florida Rules of Civil Procedure that took effect on January 1, 2012, has significant implications for the future of all mediations in Florida, including mediation proceedings involving community associations.

The Florida Supreme Court recently ratified a significant change to the state's mediation procedures found in Rule 1.720 of the Florida Rules of Civil Procedure. The new rule now requires that each party (or its representative) that appears at the mediation proceedings must have the "full authority to settle." This means that the party or representative must be the final decision maker with respect to the issues presented at the mediation and must have the legal capacity to enter into a binding agreement on behalf of the party.

A major impetus for this change has been the problems stemming from bank foreclosure mediations. Generally, banks and their servicers in these cases have sent to mediations an individual who did not have the authority to approve a settlement, or worse, would have such individual appear telephonically. Further complicating the problem is the fact that oftentimes several different departments within a bank may be required to approve a proposed settlement, and fewer than all of these departments attended the mediation. The change in the rule forces the banks and their servicers to send to mediation their agents who have the complete authority to consider and authorize a settlement with no additional consultation.

Under the amended rule, each party must file a Certification of Authority at least 10 days prior to appearing at the mediation. The certification must identify the person who will be attending the mediation and must further confirm that this individual has the full authority to settle the issues raised at mediation. In other words, the person identified must be the "final decision maker with respect to all issues presented by the case who has the legal capacity to execute a binding settlement agreement on behalf of the party." Sanctions may be imposed for the failure to file a Certification of Authority or the failure of the individual(s) actually identified in the certification to appear at the mediation. These sanctions can include awarding the opposing party its attorneys' fees and costs.

Mediation.jpgThis amendment to Rule 1.720 applies to all mediations within the State of Florida, but it will likely have a great impact on the manner in which community associates handle mediations. Traditionally, community associations have sent the association president, property manager or a designated board member(s) to attend mediations, and these representatives would reach only a tentative settlement at the mediation, which the entire board of directors would need to approve or reject at a later date. Under the rule change, this approach is no longer acceptable. The community associations must now either have a quorum of its board appear at the mediation or send a representative who has been pre-authorized by the board to accept a settlement that meets certain parameters that have been pre-approved by the board. The appearance of such individuals at mediation could arguably be considered a board meeting, and therefore should be noticed, albeit as a privileged meeting at which the association's legal counsel should be in attendance. Alternatively, if a quorum of an association's board cannot attend the mediation, it will be imperative for a duly noticed board meeting to be held in advance of the mediation in order to vote on the settlement terms that the association is willing accept and whom they will authorize to attend.

Of course, the individual(s) who attends the mediation on behalf of the community association will continue to be able to reject any settlement offers at the proceeding. Simply rejecting a proposed offer does not, by itself, indicate that the attendee lacks the authority to settle. However, they must also be able to accept a settlement without the need for a subsequent final review and approval by the board. As community associations often utilize mediation either as a prerequisite to litigation or as a means to avoid costly and prolonged litigation, this rule change has very significant implications for all of the community associations in the state.

This rule change should help to make mediations in Florida more effective and expeditious for community associations and all others who take part in these proceedings. Our South Florida community association attorneys have helped many homeowners associations and condominium associations use mediations to find fair resolutions to various types of lawsuits and disputes. We will continue to write about these and other important matters for associations in our blog, and we invite association members, directors and property managers to submit their e-mail address in the subscription box on the right in order to automatically receive all of our future articles.

Community Associations Should Effectively Use Eviction Proceedings Against Tenants Who Refuse to Comply with Rent Payment Demands

December 12, 2011, Posted by Laura Manning-Hudson

Thumbnail image for Laura Manning HudsonCommunity associations throughout Florida have benefited greatly from last year's amendments and this year's expansion of the Condo Act enabling associations to collect rent payments directly from the tenants of delinquent unit owners. Pursuant to the Condo Act, associations are now able to quickly and effectively evict tenants who refuse to comply with their demands for rent. However, some associations needlessly delay utilizing the new teeth that the legislature has provided and exerting legal pressure by filing for eviction against tenants with creative explanations for why they are unwilling to pay the association.

In many of the cases that the community association attorneys at our firm are seeing where tenants refuse to comply with an association's demand for rent, the tenants are residing in units that are in foreclosure. Many of these renters are under short-term or month-to-month leases, and they are often paying reduced rental rates because of the pending foreclosure. In some situations, the associations have no record of the lease on file or they are told that there is no lease between the tenant and the unit owner. When some of these tenants receive the association's demand, they reply by indicating that they are no longer paying rent to the unit owner, or that the owner has agreed to let them remain in the residence until the foreclosure is over.

For many associations, this type of reply from a tenant causes them to question their ability to file an action for eviction - a right that the law allows and which can exert considerable legal pressure on the tenant to force them to begin paying the association. Thumbnail image for Eviction filing.jpg Under the Condo Act, associations have the right to file a complaint for eviction in the name of the landlord if the tenant refuses to comply with the association's rent demand. The association simply needs to follow the procedures set out in the Condo Act by sending an initial notice letter requiring the tenant to make his or her monthly payments to the association. If the tenant does not make the payment to the association, then the association has the right to commence eviction proceedings as if it were the landlord in a landlord-tenant action by sending a three-day notice of nonpayment. If payment is still not made after the three-day notice, then the association can immediately file a complaint for eviction, which has the benefit of being expedited by court. In eviction proceedings, a five-day summons is issued - meaning that once the tenant is served with the complaint, the tenant has five days to respond. If the tenant raises any defense other than payment, the tenant is required to pay the rent into the court registry. Failure to respond or make the rent payment into the court registry results in an immediate default judgment for removal of the tenant with a writ of possession.

Once the eviction process is underway, the association should bear in mind that it is still possible to negotiate with the tenant to try and get them to start making some sort of a monthly payment if they wish to remain the residence. Sometimes the tenant will agree to pay an amount equal to the monthly maintenance fee. If so, at least the association can begin collecting payments for the current and future months of the tenancy. Bear in mind that if the tenant has a written lease on file with the association, the tenant cannot be obligated to make monthly payments to the association in excess of the amount of the rent payment set forth in the lease.

As the slow pace of the foreclosure process continues to unwind with many thousands of condominiums and homes in South Florida, cases of tenants refusing to comply with these types of rent demands are bound to continue to grow. For the associations that hope to recover from the housing market meltdown as quickly as possible, using these eviction proceedings against tenants who refuse to comply offers them a powerful new collection tool.