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Articles Posted in Community Association Law

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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A 2019 Florida law is sometimes a source of confusion for board members and owners in HOA communities over whether their association can restrict or ban yard vegetable gardens in their communities.

The uncertainty stems from the Section 604.71, Florida Statutes, which states that no county, municipality, or other political subdivision in Florida can regulate vegetable gardens on residential properties. However, HOAs, condominium associations and cooperatives do not fall under the category of “political subdivisions,” which are typically separate legal entities of a state that usually have specific governmental functions. Examples include a county, city, town, village, school district, and other subdivisions with a governmental legal status. Community associations are private not-for-profit corporations, and while they may govern over their communities, they are nongovernmental entities with powers that are codified by state law.

So, while counties and municipalities in Florida cannot regulate or ban front-yard vegetable gardens, HOAs can and often do restrict them.

Vegetable-Garden-300x200Proponents of vegetable gardens in HOAs reference many benefits associated with permitting vegetable gardening within the boundaries of private lots within HOAs, including the promotion of sustainable food production, improved health and cost savings. However, those opposed to the activity within HOAs may reference some concerns, such as potential for attraction of pests and vermin, the creation of a mismatched aesthetic community landscape, and the possibility of overgrowth which may diminish visibility required for safe pedestrian and vehicular traffic.

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susanodess-srhl-224x300Michael-Clark-Gort-photo-200x300Shareholders B. Michael Clark, Jr. and Susan C. Odess authored the latest edition of the firm’s “Real Estate Counselor” column appearing in today’s Miami Herald.  The article, which is titled “Don’t Let Your Guard Down: Here Are Some Hurricane Prep, Recovery Reminders for Storm Season’s Second Half,” focuses on the types of activities and initiatives that condominium associations along the coast and other Florida community associations should be taking in advance of as well as in the aftermath of a severe hurricane.  Their article reads:

. . . Given the precarious condition of the Florida insurance marketplace today, it behooves property owners and community associations throughout the state to take the upmost precautions to prepare for any storms and recoveries as the season draws to a close in November.

For condominium associations on or near the coast, they should consider pre-negotiated service contracts with vendors who typically assist in the aftermath of a storm. This can include water restoration companies to mitigate flooding, debris removal companies, and security providers.

If a storm is approaching, boards of directors should begin by ensuring they have up-to-date paper rosters of the current residents stored at a secure and accessible location. Clark-Odess-article-for-blog-99x300Accompanying it should be a copy of the governing documents, a certified copy of the insurance policy, bank account information, service provider contracts, and contact information for all residents, staff and vendors.

It is also highly advisable to take date-stamped videos and photos of the entire property, including all mechanical and common elements.

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As the election season begins to get into full swing in anticipation of the upcoming mid-term in November, the polarized nature of today’s political and social environment makes this an important time to remind community association directors and unit owners of the importance of the need for civility and respect in their interactions with their neighbors. These times, when yard signs supporting candidates and social causes/organizations have led to skirmishes and hostilities in connection with past elections, make this an ideal moment to remind stakeholders in communities of the efforts that can be deployed to promote civility among neighbors.

While we are often reminded about the importance of preserving our individuality, it is also vital to remain tolerant of others’ individuality. This concept is even more relevant within community association living – in which many individuals with different points of view, ideals and opinions are required to coexist with each other in a relatively small area, and also to share in the use and upkeep of common facilities. Communities in which owners display high levels of volatility and intolerance may be considered undesirable places to live, where discord may stand in the way of progress.

At the other end of the spectrum, some communities choose to avoid conflicts in situations that could result in the stagnation of progress or in the deterioration of the fabric of the community, possibly even resulting in declining property values.

In light of the potential for adverse results that may arise due to community conflicts, unit owners as well as directors and managers should focus on efforts to advance the objectives of their community while remaining tolerant of differing opinions, approaches and points of view.

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Chere-Trigg-225x300The firm’s latest Miami Herald “Real Estate Counselor” column appears in today’s edition of the newspaper and is authored by shareholder L. Chere Trigg.  The article, which is titled “Community Association Officers, Watch Out for Fraud: If You See Something, Say Something,” focuses on preventing fraud and theft, as well as responding to them whenever they are suspected, in condominium associations and HOAs.  Her article reads:

. . . In the community association setting, fraudsters can come in many forms including directors, property managers, bookkeepers, accountants, attorneys, contractors and others. Those who commit fraudulent acts typically pose as experts and work diligently to gain the trust of their victims, then these unscrupulous individuals deploy their schemes and begin to syphon funds from association accounts.

In many ways, modern technology has exposed associations to new sources of potential fraud and financial abuse. The deceit involved in some cases of fraud can be immense, and it often takes much more than cursory reviews of financial and account statements by board members and property managers to determine whether something is amiss.

LCTrigg-Herald-RE-for-blog-100x300Some of the telltale signs of potential malfeasance include unusual payments for unbudgeted purchases, payments remitted to unknown vendors, and/or unauthorized signatures appearing on checks or other official documents. However, the variety of potential schemes, which can also include bribes and kickbacks involving unscrupulous vendors, demands the upmost vigilance for effective prevention and detection.

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EvonneAndris-srhl-law-200x300The firm’s latest Miami Herald “Real Estate Counselor” column authored by partner Evonne Andris appears in today’s edition of the newspaper and is titled “The Costs of Community Association Lawsuits, And How to Avoid Them.”  Evonne’s article focuses on the potential impacts of community association litigation, and the benefits of alternative options for resolving association disputes.  It reads:

. . . In such an environment where emotions can run high, boards of directors and the owners they represent should always strive to let cooler heads prevail. While in certain situations litigation is a necessary tool to assist in the governance of a community, it is a tool that should be used with the understanding that escalating conflicts into litigation is almost always detrimental for both sides in association disputes, including those who eventually prevail in the matter.

Litigation is a disruptor of community harmony, and it could lead to very public squabbles that often make the local news. Such coverage can have long-term negative impacts for communities with their indefinite online lifespan via internet searches under a community’s name, making them potentially detrimental for property values.

EAndris-Herald-clip-for-blog-8-14-22-100x300Real estate brokers can also become keenly aware of communities that are rife with conflicts, and they will steer their clients elsewhere. Some lenders will also inquire about pending litigation in their loan pre-approval questionnaires, and they may become reluctant to approve mortgages for prospective buyers in communities involved in potentially significant lawsuits, or in those that regularly attempt to enforce their rules, policies and decisions through litigation as opposed to other forms of dispute resolution.

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A recent article in the Palm Beach Post chronicled the early signs of the financial strains that Florida condominium associations are beginning to experience. Unfortunately, these early issues involving increased insurance costs represent just the beginning, and things are indeed expected to get worse in the months and years to come.

The article discusses how the 51-year-old Portofino South Condominium in West Palm Beach (pictured below) received a renewal quote from its insurer with an 82 percent increase over the prior year. It had expected an increase of around 25 percent, which was what it got for 2021, so the board of directors had to call a special meeting to increase the association’s annual budget and hike up its monthly dues for its owners.

Mary McSwain, who bought her one-bedroom unit in January, told the Post’s Kimberly Miller that her dues are going from $914 a month to $1,347.

“And it’s likely to get more expensive for owners under the new condo law approved during a special legislative session,” the article reminds readers.

pfino-south-300x200Indeed, while most of those safety provisions do not become effective until 2024, the law will require significant new inspection and maintenance measures on older condos three stories or higher, as well as dedicated reserves to pay for structural repairs.

For the owners at Portofino, the news is even worse. State law now requires it to install a new fire-sprinkler system by Jan. 1, 2024, and that is expected to cost its unit owners more than $7 million.

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Gary-Mars-2021-2-200x300For the second time in the last several months, firm shareholder Gary M. Mars authored an op-ed editorial column in the Miami Herald on a vital new piece of federal legislation to provide for condo-safety financing options for condominium associations and their unit owners.  Gary’s new article, which is featured in today’s op-ed Opinion page of the Herald, discusses what he calls a perfect storm of rising insurance, inspections, repairs and reserves expenses that could jeopardize the finances of many South Florida condominium associations and force some owners to either sell or face the prospect of foreclosure.  It reads:

. . . A recent Palm Beach Post article chronicled how the Portofino South Condominium in West Palm Beach received an 82% increase from its insurance carrier, while its directors and residents had expected an increase of about 25%, which the community got in 2021.

Mary McSwain, 67, who bought her one-bedroom unit in January, said her monthly dues are going from $914 to $1,347.

GMars-Herald-op-ed-8-2-22-for-blog-137x300For most communities, increased insurance costs will come first, but increases created by the provisions of the state (and some county) mandates for structural inspections, repairs and reserve funding are sure to follow. Those provisions do not start until 2024 for the affected buildings, but association boards would be well advised to begin securing and vetting offers from qualified professionals for their long-term budgetary planning.

A federal proposal introduced recently by Florida U.S. Reps. Charlie Crist and Debbie Wasserman Schultz, together with another bill from the same lawmakers introduced in April, could provide relief for communities in immediate need of substantial repairs and renovations. The new Rapid Financing for Critical Condo Repairs Act of 2022 would let the U.S. Department of Housing and Urban Development’s Federal Housing Administration insure condominium association building rehabilitation loans issued by private lenders.

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Jonathan-Mofsky-2021-2-200x300The firm’s latest “Real Estate Counselor” column in today’s Miami Herald is authored by partner Jonathan M. Mofsky and titled “Ruling Shows Pitfalls of Associations Enacting Changes Without Required Votes.”  It focuses on a recent ruling by Florida’s Fifth District Court of Appeal that illustrates the potential consequences of associations that undergo alterations to their amenities and enact rule changes without the required vote and approval of their unit owners.  Jonathan’s article reads:

. . . The case initially stems from a filing for mandatory non-binding arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes under the Department of Business and Professional Regulation. Michelle and Kevin Flint, owners of several units at the Lexington Place condominium in Orlando, objected to the condo association’s elimination of a common element dog park and a court for wallyball (i.e., a sport similar to volleyball played on a racquetball court). They alleged the association performed these material alterations without a vote and majority approval of the unit owners in violation of its own declaration of condominium.

The Flints also challenged a board-enacted rule that prevented tenants from maintaining pets at the condominium, which they claimed violated the pet restrictions contained in the declaration.

JMofsky-Herald-clip-for-blog-7-31-22-103x300The couple prevailed in these proceedings on both issues. However, the association chose to escalate the matter by filing a lawsuit in Orange County circuit court based on the same arguments originally presented in arbitration.

The circuit court also ruled in favor of the Flints and affirmed the arbitrator’s decision. After considering the different provisions in the association’s declaration as well as the arguments of the parties, the court found that because the association’s declaration required approval by a majority vote of the unit owners prior to performing the alterations, the association’s board of directors alone lacked the authority to eliminate the community’s dog park and wallyball court.

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In South Florida, the pool is an extremely popular and widely used community amenity. While community pools can be a great source of joy and relaxation for residents and their guests, they can also sometimes become a focal point of strife and confrontations.

Given the propensity for certain issues to arise, and in hopes of preventing them, associations are well advised to establish and enforce pool-use rules for their communities. Such rules, which should be comprehensive and cover a wide array of use and operations matters related to the pool and the pool deck including opening/closing times, guest capacity, noise, horseplay, swimwear, diving, smoking, drink/food, and more, are truly essential for associations to maintain order and diminish potential legal liabilities.

With the help of qualified community association legal counsel, who will always begin by checking an association’s governing documents to ensure it follows the prescribed process for adopting enforceable pool rules, associations should develop fair and reasonable rules that are designed to promote the efficient and safe use of the amenity. comm-pool-300x200The goals and purposes behind every rule should be clearly evident from its very nature, and any changes and additions to the rules and their enforcement should be discussed with both experienced legal counsel and property management prior to implementation.

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