Voter apathy is nothing new in most community associations but to really understand the reason why your community regularly fails to achieve a quorum, elect a new board or to successfully tackle longstanding projects which require membership approval, it is important to look a little at human nature.
It is no secret that most of us like things to be easy and voting in your condominium, cooperative or homeowners association often is not. This is particularly true for out of state and international owners for whom the mail is not always delivered with sufficient turnaround time for those members to vote. Even for those owners who are full-time residents having to stuff an envelope and mail it may just not be worth it to them. Psychologists attribute this tendency to the fact that for most people to embark on a project or undertake an activity he or she has to value the return on labor more than the loss of comfort. For many association members they just don’t see the return on their investment in terms of turning out for the meeting or sending in a proxy.
In addition to the convenience factor, some owners also believe that paper ballots are subject to easy tampering and, in some communities, their fears are well-founded. A private community located in Hialeah, Florida was dismayed to learn that in their 2015 elections with a total of 457 possible votes, somehow the complex mysteriously gained 61 additional units. In one Broward County community, the Board president and secretary tried to rig their election by filling out blank ballots for people who generally don’t vote.
Given that most people like convenience and dislike the possibility that their vote may be discounted, discarded or changed, could electronic voting be a viable voting option for your community?
The Top 5 Reasons your Community Association should consider online voting for important membership votes:
- It’s Legal. In July 2015, The Florida Legislature authorized electronic voting for condos, co-ops and HOAs. This legislation was designed to help Florida associations function better by increasing membership participation and reducing the possibility for fraud.
- It’s inclusive. Online voting removes the line between owners who live in the community year-round and those who do not.
- It’s convenient. Those communities choosing BPBALLOT do not have to download software or pay an annual subscription fee. With BPBALLOT, your Board Members and owners only need an internet connection to go on www.bpballot.com to cast a vote. Voting can be done on your mobile phone, tablet or desktop.
- It’s cost effective. If your members have agreed to receive meeting notice by electronic transmission then online voting is the next logical step to reducing all of the labor and costs involved with a manual mailing of voting materials.
- It deters fraud. The skill set needed to forge a signature on a paper ballot, throw out a ballot or stuff a ballot box is much lower than the skill set needed to hack into a computer and interrupt a ballot in electronic transit. Moreover, any nefarious activity online leaves a digital footprint so the culprit is much more likely to be caught.
Take a moment to test drive BPBALLOT and see if it might make sense for your upcoming election or other membership vote.
Welcome to this issue of Manager’s Minute! Can you believe we are in the home stretch of the end of the year? Boy, did this year fly by. Lots of action in the community association field as well – important court rulings, HUD guidance on using criminal background checks to deny applicants and residents creating hostile environments for other residents, federal court ruling on disparate impact of otherwise neutral policies. Traversing this minefield of state and federal law as well as administrative rulings and guidance is not a walk you want to take alone – make sure your Boards are aware of all the legal pitfalls out there for the unwary association, and remind them not to be penny wise and pound foolish by not relying on their attorney for advice in these matters.
You may also want to remind your Board of the Florida Supreme Court Florida Bar Advisory Opinion regarding the unlicensed practice of law and what a manager can and cannot do. Remember, it is your license on the line.
We are here to help you navigate your way with your association’s legal issues. Please feel free to contact me with any questions you may have.
Question: I live in a homeowners association and have e-mailed our board president a number of times concerning items that I feel should be discussed by our board. While the president has politely acknowledged my e-mails, none of my suggested topics have been brought up. Does the board at least have to consider my issues? (M.U. by e-mail)
Answer: Probably not. Both Chapter 720 of the Florida Statutes, the Florida Homeowners’ Association Act, and Chapter 718 of the Florida Statutes, the Florida Condominium Act, provide a process for owners to petition the board to have specific items placed on the agenda of a board meeting. Both statutes provide that if the association receives a petition that is signed by at least 20% of the total voting interests in the association, the board must address the subject of the petition either at its next regularly scheduled board meeting or at a special board meeting scheduled within 60 days of the receipt of the petition. While the board must address the subject of the petition at the board meeting, the board is under no obligation to vote in any specific way or take any specific action based on the receipt of a member petition.
Unless there is some unusual provision in your governing documents which permits an owner to request an item be placed on the agenda of a board meeting, the association is under no legal obligation to take up the issues. However, there is no rule against the association’s addressing items that are raised by owners. Perhaps you should attend a board meeting and ask to at least raise your issue to the whole board. Although the law would only require that you be recognized if you wish to speak to a designated agenda item, I have found that most boards do give some leeway for owner input during their meetings.
Question: Do I have the right to know the compensation package of employees of my homeowners’ association? (J.S.by e-mail)
Answer: This is a complicated issue and there is not unanimity of opinion as to what the law actually means. The answer to your question may depend on where the information you seek is contained. The Florida Homeowners’ Association Act (Chapter 720 of the Florida Statutes) provides that management agreements are considered official records of the association that must be made available to the association members upon receipt of a written request. The same is true for all financial and accounting records of the association.
Question: I have owned my condominium unit for more than 14 years. I enjoy having an occasional cigar at the designated smoking section provided at the condominium pools. About a year ago, a new board decided to ban smoking at all the pools. Is there a grandfather clause for my type of situation? One of the reasons I purchased a unit in this particular condominium was that it permitted smoking at the pools. S.N. via e-mail
Answer: Several states (including Florida) have banned smoking in most public places. The gradual move toward smoke-free condos, and the extent of a board’s authority in this arena, is also one of the hottest topics (no pun intended) around the country. The Florida Clean Indoor Air Act, found at Chapter 386 of the Florida Statutes, provides a uniform statewide code to keep public places and public areas reasonably free from tobacco smoke. The Statute specifically regulates indoor “common areas,” including indoor common elements of a condominium. The law does not apply to outdoor common areas. That being said, your Board’s new rule does, of course, apply to outdoor common areas.
A Board’s rule-making authority is derived from the governing documents. Most condominium association governing documents do grant the Board rule-making authority regarding the common elements. Assuming your Board has this authority, and adopted the rule in a procedurally correct manner, the new rule will be found enforceable so long as it is “reasonable.”
While no Florida appellate court has yet tackled this issue, I personally feel that a rule banning smoking at the condominium swimming pools will be found to be reasonable. The ill health effects of secondhand smoke are well established. Further, many non-smokers are offended by secondhand smoke in their vicinity, even in an outside setting. Perhaps you could ask your Board to establish an outdoor smoking area on part of the property where other residents would not typically go.
Although there are always exceptions for certain types of situations, the Board is under no obligation to “grandfather” any owners or residents who previously utilized the “smoking area” at the pools.
Question: The issue of “sober houses” and other types of group homes has arisen in our community. We would like to know if we can amend our homeowners’ association documents to prohibit such uses? (S.W. by e-mail)
Answer: In 2016, the Florida Legislature adopted the “Florida Sober Home Bill,” which creates a new certification for “recovery residences” (often referred to as “sober houses”) and for recovery residence administrators. While the certification is voluntary, the legislation also provides that state licensed service providers may only refer patients to certified recovery residences.
Most association governing documents limit the use of the homes to single family residences. However, there are circumstances where an association may be required to grant exceptions to its rules and restrictions, including single family use restrictions.
Homeowners’ association are typically considered “housing providers” and are subject to various fair housing laws, including the federal Fair Housing Act. The FHA prohibits discrimination in housing based on a number of criteria including “handicaps,” which is most often referred to by enforcement agencies as “disabilities” (the term “handicap” is sometimes considered a pejorative term).
There have been a number of cases construing whether group homes or similar facilities must be granted “reasonable accommodations” to serve disabled persons. Individuals recovering from alcohol or drug dependence are entitled to the protections of the FHA.
Given the potential liability affiliated with a legal misstep, I would suggest that your association consult with its attorney to properly advise the board if such amendments are being considered.
Question: I’ve heard that homeowners associations are permitted to permit “penny-ante” types of card games on common property, but don’t know what exactly is considered gambling and what’s permitted under the law. (J.M. by e-mail)
Answer: Section 840.08 of the Florida Statutes defines gambling to include “any game of cards, keno, roulette, faro or other game of chance” which is played for “money or other thing of value.” Illegal gambling is a second degree misdemeanor.
Section 849.085 of Florida Statutes addresses and exempts certain “penny-ante” games played in a dwelling. “Penny-ante game” is defined as “a game or series of games of poker, pinochle, bridge, rummy, canasta, hearts, dominoes, or mah-jongg in which the winnings of any player in a single round, hand, or game do not exceed $10 in value.”
“Dwelling” includes the common elements or common areas of a condominium, cooperative, residential subdivision, or mobile home park of which a participant in a penny-ante game is a unit owner. The host may not receive any consideration or charge admission for allowing a penny-ante game to occur in his or her dwelling and may not permit persons under the age of 18 to participate.
Question: I own a condominium unit in Florida that I use as a vacation home. My permanent residence is in New York. Is the association required to send official correspondence from the association, such as meeting notices required to be delivered to the members, to my home in New York? Or is it acceptable to only send the correspondence to my unit address in Florida, with it then being my responsibility to retrieve the correspondence? (M.S. by e-mail)
Answer: The Florida Condominium Act (Chapter 718 of the Florida Statutes) provides that official notice of meetings and notice for all other purposes must be mailed to each unit owner at the address last furnished to the association by the unit owner, or hand delivered to each unit owner. Notices can also be sent by e-mail if the owner has consented in writing to receive notices in that fashion.
The association must send official notices to the address that the owners of the unit designate in writing. If no address is given to the association, or if multiple owners of the same unit cannot agree on the record address, the association can use the address provided on the deed of record.
If you notify the association in writing that all association notices should be sent to your home in New York, the association is required by law to comply with your request.
Governor Scott has signed Executive Order 16-230 declaring a state of emergency for every Florida county due to the severity and magnitude of Hurricane Matthew.
Governor Scott said, “Hurricane Matthew is a life-threatening category four hurricane and we must all take it seriously. If Hurricane Matthew directly impacts Florida, there could be massive destruction which we haven’t seen since Hurricane Andrew devastated Miami-Dade County in 1992. That is why we cannot delay and must prepare for direct impact now.”
Hurricane Preparedness Tips from the Red Cross
Hurricanes are strong storms that can be life-threatening as well as cause serious property-threatening hazards such as flooding, storm surge, high winds and tornadoes. Preparation is the best protection against the dangers of a hurricane. Know the difference between the threat levels and plan accordingly.
- Listen to a NOAA Weather Radio for critical information from the National Weather Service (NWS).
- Check your disaster supplies. Replace or restock as needed.
- Bring in anything that can be picked up by the wind (bicycles, lawn furniture).
- Close your windows, doors and hurricane shutters. If you do not have hurricane shutters, close and board up all windows and doors with plywood.
- Turn your refrigerator and freezer to the coldest setting. Keep them closed as much as possible so that food will last longer if the power goes out.
- Turn off propane tank.
- Unplug small appliances.
- Fill your car’s gas tank.
- Create a hurricane evacuation plan with members of your household. Planning and practicing your evacuation plan minimizes confusion and fear during the event.
- Find out about your community’s hurricane response plan. Plan routes to local shelters, register family members with special medical needs and make plans for your pets to be cared for.
- Obey evacuation orders. Avoid flooded roads and washed out bridges.
For additional information, please check the information at www.redcross.org
The shared ownership statutes, Chapters 718, 719, and 720, Florida Statutes, authorize the board of directors to exercise certain emergency powers when a state of emergency has been declared, including using reserve funds for emergency purposes without a membership vote. For a full list of emergency powers available, please see Sections 718.1265, 719.128, and 720.316, Florida Statutes as applicable.
Dealing with the Aftermath of the Storm
If your community is impacted Hurricane Matthew, here are a few helpful tips for dealing with the aftermath of the storm:
- Account for your residents particularly the most vulnerable (I.e. Elderly or those with medical needs) in your community. Use your emergency contact list for those residents who cannot be found or who may need help post disaster.
- Secure your property. If you have a security gate in your community, make sure it is functioning. If your community has been evacuated make sure that all entry doors to the building and recreational amenities are secured. You do not want trespassers finding their way onto your property in the aftermath of this storm.
- Take immediate steps to prevent further water and element intrusion if Matthew blew out windows or doors or tore openings in your roof.
- To the extent water damage has occurred, remove damaged Association personal property and work with the owners to remove their damaged water-soaked property to prevent mold infestation.
- Take date-stamped pictures and video of the storm damage, assemble maintenance records and any bench marking data you previously compiled and contact your agent.
- Separate the urgent tasks from the important ones. The foregoing steps are urgent. The next steps for your recovery include properly vetting contractors to undertake all necessary repairs and working with your professional advisers to shepherd your insurance claim.
Do’s and Don’ts
- Do Download the Becker & Poliakoff Hurricane Preparedness and Recovery Guide
- Do Download the Red Cross Emergency App: The Red Cross Emergency App provides people with instant access to emergency alerts and life-saving information. The app is available in app stores by searching for American Red Cross or by going to www.redcross.org/apps
- If Matthew crosses your path and causes damage to your community, Do call or email your Becker & Poliakoff community association attorney as soon as possible so that we can help fast track your recovery and repairs. You can also feel free to contact CALL toll-free at 1-844-4FL-CALL (1-844-435-2255). You can also reach CALL via email at CALL@bplegal.com.
- Don’t rush to bind the association to a long-term repair contract. Your immediate needs include safeguarding the property from element intrusion. You have time to properly vet contractors and negotiate a contract which preserves the association’s rights.
- Don’t hire your own Public Adjuster instead of relying upon the adjuster supplied by the insurance company. That hiring decision should not be made until you have spoken with your association attorney to discuss what a PA can and cannot do for your claim and to clarify the terms of that PA representation.
- Don’t sign a repair contract which assigns your insurance benefits to the contractor.
- Don’t be fooled by sales pitches from attorneys, contractors, engineers, public adjusters and others you do not know. Every disaster brings with it a certain amount of opportunism which is usually not in the best long-term interests of your community.
One of the many benefits of being an annual retainer client of Becker & Poliakoff is that you are entitled to receive a post-disaster visit from your association attorney as well as one of our Insurance attorneys, to help you assess and document any damage you have suffered. We can also handle any insurance coverage claim you may have, and in most circumstances, without any out of pocket cost to your association. If you have property damage please keep in mind that proper notice to the insurance company is critical. We can assist you with that notice and initial claim preparation as well.
We are hopeful that Matthew turns away from Florida, but if not, please stay safe.
Question: I recently contacted my condominium association asking to review various records since I have some serious questions about how things are being done. I asked to see all the election documents and was told the management company only had last year’s results. I thought records had to be kept for 7 years? (C.O. by e-mail)
Answer: Section 718.111(12) of the Florida Condominium Act generally requires an association to keep official records at least 7 years and to make such records available to the unit owners for their inspection within five working days of a written request. However, as with most rules, there are exceptions. Specifically, the law states that, “ballots, sign-in sheets, voting proxies, and all other papers relating to voting by unit owners must be maintained for 1 year from the date of the election, vote, or meeting to which the document relates.”
The other exception to the 7 year rule is board member certifications which must be kept for 5 years from election or for the duration of the director’s uninterrupted service, whichever is longer.