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Articles Posted in Community Association Law

A well-functioning community association board requires dedicated directors who are all doing their part to help make their enclave the best it could possibly be. Each of a board’s members and officers, which generally include the president, vice president, treasurer and secretary, play vital roles and make essential contributions to the administrative and financial wellbeing of their association.

With that in mind, the office which is often perceived to be most important is that of the association president. While the individual serving in such capacity may not cast a vote having a greater weight than other directors or officers, the president may set the tone for a well operated community or for one that leaves room for improvement.

Firstly, the president is generally required to sign many legal documents and official association records such as new amendments and contracts. As such, they should be very involved in the work that goes into the development of all the important documents and records, so they know exactly what they are signing – and so as to possess individual knowledge as to the purpose and consequence of each in order to be able to respond to any potential member inquiries about them.

Board-pres-300x150Additionally, while the oversight of association budgetary and financial matters primarily goes to the treasurer, the president is usually very much involved in all major financial matters and often plays a lead role in vetting and approving any emergency expenses that may arise. That is one of the reasons why successful community association presidents should be versatile, possess a broad knowledge of association concerns, and be able to dedicate the time necessary to focus on such tasks.

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Shari-Garrett-002-200x300The firm’s latest Miami Herald “Real Estate Counselor” column is authored by partner Shari Wald Garrett and appears in today’s Neighbors section of the newspaper.  The article, which is titled “Increases in Community Association Budgets Require Careful Deliberation, Communication,” focuses on the budgetary strains that Florida community associations are now beginning to experience.  It notes that directors and property managers are finding it particularly difficult to reconcile required increases with many community home and condominium owners, but there is no avoiding the difficult work that lies ahead.  Her column advises:

. . . One of the best budgetary approaches for associations to consider is the use of a finance/budget committee, which is able to give all the important financial questions that come into play the attention and consideration they deserve.

Ideally, finance/budget committees should be composed of three or more dedicated owners who have professional financial/accounting or budgetary oversight experience. This committee should meet year-round to discuss all matters pertaining to changes to the association budgetary plans and finances. SGarrett-clip-for-blog-11-6-22-102x300The committee’s focus should be on the implementation of the annual budget for the upcoming fiscal year, as well as all the other financial and budgetary requirements based on the association’s bylaws.

Once the committee completes and submits its proposed annual budget to the board of directors for final approval, its members should attend the coming board meeting(s) to discuss the budget and address any questions or concerns.

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A recent article in the Pensacola News Journal focused on an uproar over an HOA’s restrictions against backyard chickens in a case that is very similar to one I wrote about in this blog in September 2021.

The newspaper reports that Holley By the Sea homeowners in Santa Rosa County fear their HOA may be moving toward a complete ban of their feathery friends. Approximately 100 of the 3,500 residents in the sprawling community own chickens, according to resident Mark Chapman.

He says the community’s residents take pride in their chickens and small backyard coops, and some fear the HOA is seeking to limit or possibly ban chickens from the neighborhood.

chckns-300x188Chapman tells the newspaper that chicken ownership had not been a problem until fairly recently when the new board of directors decided to make it one. He says the board has begun its efforts by limiting the size of backyard chicken coops. One resident was ordered to reduce the size of her coop and lower its roof to no higher than six feet, even though Chapman has been allowed to keep his at seven feet. He says the new board president has stated he wishes to ban chickens in the community, and a Nov. 8 meeting has been scheduled on the issue.

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A significant part of our firm’s work focuses on representing property owners in claims against their insurance carriers. We regularly counsel and represent property owners, including condominium associations, in claims involving weather/wind and nonweather water damage, fire/smoke damage, and damage to common elements such as pools, parking garages, elevators, roofs, etc.

Only rarely do such cases go to trial, but in recent months our firm’s insurance attorneys secured jury verdicts in favor of claimants involving very typical nonweather water losses. Shareholders Susan C. Odess, Stuart Sobel and Nicholas Siegfried, together with associate Zachary T. Smith, recently pursued cases against State Farm and Universal over their refusal to adequately cover damages stemming from broken water pipes and leaks.

Water-Damage-300x200The three Miami-Dade Circuit Court jury verdicts we secured in these suits are excellent examples of the types of cases that our firm’s insurance attorneys successfully handle on behalf of our clients.  We will now pursue the recovery of our attorneys’ fees and costs against these carriers.  Of equal import, we will be filing separate actions on behalf of the policyholders for all of the prevailing cases to assert a claim for bad faith.  While these claims involved homeowners, we often secure similar results for condominium associations and HOAs for comparable water-loss claims.

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MichaelHymanThe firm’s latest Miami Herald “Real Estate Counselor” column is authored by shareholder Michael L. Hyman and appears in today’s edition of the newspaper.  The article, which is titled “3 Reports of Association Fraud on Same Day Show Importance of Prevention, Vigilance,” focuses on news reports from across the country that made headlines on Sept. 26 of three cases of apparent community association fraud, theft and embezzlement.  It reads:

. . . The reports began in Minneapolis when several local outlets as well as the Associated Press chronicled how a California woman had been indicted in federal court for embezzling more than $1 million from several local HOAs. Mai Houa Xiong, 47, of Fresno, California, was charged with wire fraud, aggravated identity theft, making and subscribing a false return, and other charges.

Xiong, who worked for an unnamed Minneapolis property management company from May 2013 – Oct. 2021, “had nearly unfettered access to the victim homeowner’s associations’ financials, bank accounts, vendor and contractor payments, and bookkeeping systems,” according to a U.S. Attorney’s Office news release. MHyman-Herald-clip-for-blog-10-23-22-300x300She is accused of devising and executing a scheme in which she used her access to the HOAs’ bank accounts to transfer money directly into her personal bank accounts by mislabeling and disguising the electronic transfers as legitimate expenses. She is even charged with using her signatory authority to make cash withdrawals from the HOAs’ accounts, including some withdrawals after she had been fired from the property management company in July 2021.

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With the passage of a new law in 2015, the Florida legislature made online-based electronic voting an option for the state’s community associations. Many associations have since adopted the use of electronic voting for their meetings and elections, and the supporters thereof have claimed that is has yielded a number of benefits including increased membership participation and improved tracking of owner participation, trends and interests. Here are a few helpful tips for those who are now considering the implementation of electronic voting in their communities.

Boards of directors should first be aware that if they wish to implement an internet-based voting system for the votes of their owners, they must do so in compliance with the statutory procedures applicable to their respective associations, which include the adoption of a resolution supporting the platform at a properly noticed meeting. Once approved, associations should notify the owners of the change as well as the procedures and deadlines for owners to opt-in or opt-out via written responses that are added to its records.

Online-Voting-300x200Florida law requires that community association e-voting systems must be able to authenticate owners’ identities and receive ballots in a manner that ensures their secrecy and integrity. For board elections, the owner-identifying information must be separated from each ballot to render it impossible to tie authenticated ballots to specific owners. The systems must also be able to store and keep electronic votes accessible for recount, inspection and review purposes.

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Oscar-Rivera-2015-hi-res-200x300Oscar R. Rivera, our firm’s managing shareholder, was the first and the penultimate local business leader quoted in the Sun Sentinel‘s article on the repercussions of Hurricane Ian featured on the front page of today’s edition of the newspaper.  The article, which is titled “Survivors’ Decision: Rebuild or Relocate?”, focuses on the consequences of the devastating storm for residents and business owners throughout the impacted areas.  It reads:

Hurricane Ian gave southwest Floridians plenty of reasons to leave: It killed at least 115 people, crushed countless homes and businesses, turned area waterways into toxic soups and caused at least $50 to $65 billion in damages.

But as residents and business owners assess the devastation and reach for insurance policies that may or may not cover all of their losses, there appears to be an emerging consensus for rebuilding, and not relocating to areas perceived to be less vulnerable to catastrophic storms.

ORivera-SS-clip-for-blog-10-10-22-134x300It is a mindset, analysts say, driven by a long-standing affinity for Gulf Coast living, a strong resolve among public and private sector interests, and a growing tolerance of devastating hurricanes as life disruptors.

“We have already been contacted by numerous clients and potential clients,” said Oscar Rivera, managing shareholder of the Siegfried Rivera law firm in Miami, which represents condominium owners, associations and commercial real estate investors. “Everyone we have spoken to is committed to rebuilding.”. . .

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Nicole-Kurtz-2021-200x300The firm’s latest “Real Estate Counselor” column in the Miami Herald is authored by shareholder Nicole R. Kurtz and appears in today’s edition of the newspaper.  The article, which is titled “Community Association Disputes? Here’s How to Minimize and Avoid Them,” focuses on the most common types of association clashes, the damage they can do, and some of the best approaches for associations to steer clear of them.  It reads:

. . . [F]or most communities to realize the benefits that stem from effective association oversight, some disputes are inevitably bound to arise from time to time. Some of the most typical association clashes involve:

  • Matters arising from compliance with state laws and municipal regulations;
  • Financial issues, including collections, special assessments and reserves;
  • Rule enforcement, including violations, suspensions and fines;
  • Architectural review applications and decisions;
  • Amendments to governing documents;
  • Maintenance of community amenities, and rules governing their use;
  • A perceived lack of transparency, including ineffective communications of association rules, changes and operational procedures to owners and residents;
  • Seemingly inadequate responses to residents’ concerns and complaints;
  • Meetings and their discussions, agendas and notices;
  • Devising, implementing and enforcing new rules and restrictions;
  • Renovations and alterations to the common elements or common areas;
  • Maintenance of the common elements and areas;
  • Board of director election irregularities and concerns;
  • Vendor contracts.

NKurtz-Herald-clip-for-blog-10-9-22-103x300The most effective community association boards of directors understand their business decisions will inevitably lead to disputes from time to time, but they should seek to avoid perceived minor or frivolous disputes whenever possible. They should also try to minimize or avoid significant disputes that may negatively impact the association’s operations and sow discord within the community.

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Roberto-Blanch-2021-1-200x300The firm’s latest Miami Herald “Real Estate Counselor” column was authored by partner Roberto C. Blanch and appears in today’s edition of the newspaper.  The article, which is titled “HOA Policies on Signs, Flags Require Diligent Discussion and Deliberation,” focuses on the issues surrounding yard signs and flags in HOA communities that often arise prior to presidential and midterm elections.  Roberto’s article reads:

. . . Many community associations have already established rules covering yard signs, flags and displays, as they have been a long-time cause of questions and concerns in gated enclaves. Even the Florida legislature weighed in on the matter years ago by enacting a state law prohibiting HOAs from banning respectful displays of the U.S. flag as well as the state flag and those of the branches of the armed services.

For community associations that have not yet addressed policies regarding yard signs and displays, taking a proactive approach may well be the most effective option for such a significant and recurring issue. Enacting policies could help to minimize the potential for discord that may arise if neighbors with opposing viewpoints try to outdo each other with walls of signs at their property lines. Not only would such displays be unsightly; they could also significantly compromise harmony within the community and the adherence to mutual respect among fellow owners/residents.

RBlanch-clip-for-blog-9-25-22-300x300The place to start, as with most matters involving the enacting of new rules and restrictions, is with a careful review of an association’s governing documents by qualified legal counsel. The terms of an association’s declaration, by-laws and articles of incorporation — together with an analysis of the applicable statutes — will guide the decision establishing the approach which should be taken to make the changes. While at times it may be necessary to conduct and obtain votes of a community’s owners to amend the restrictive covenants, some restrictions may be more easily achieved by having the board of directors modify existing rules or enacting new rules.

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Florida community associations are required to keep certain records and make them available to all their members, so the position of secretary as the official record keeper of an association is of vital importance.

The most effective association secretaries are typically detail oriented, highly organized, efficient, and responsive.  They must be able to coordinate records and communications with property management and the other members of the board, executive committee, and other association committees.

Strong writers and communicators often do well in the position.  Secretaries are responsible for keeping the “meeting minutes” for all official association board meetings, so they must be able to listen closely to detailed discussions and distill them into clear and concise summaries.  The best ones understand that these minutes must be accurate yet concise.  They are not meant to document everything that everyone said at the meetings, but rather to list the topics and reports that were discussed, and all the actions taken.

Community association secretaries should understand that the focus of the meeting minutes must be on recording all votes and decisions.  They need only include a summary of the discussions, with a complete and accurate listing of the motions made and the resulting votes.

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