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Florida Condo & HOA Legal Blog

News & Updates on Condo & HOA Laws & Legislation in the State of Florida

Convicted Felons Ineligible for Condo Board Service in Florida

Posted in Board Eligibility, Elections

Portrait of brutal man in a business suitQuestion: My condominium association’s annual meeting is next month. Several of us are concerned because we have been told that one of the individuals running for the board was charged with felony security law violations. While he was apparently never convicted, a lifetime ban from the securities industry was imposed against him and he was required to pay fines. Is he eligible to run for the board? (C.P. by e-mail)

Answer: Probably. The Florida Condominium Act provides specific and limited disqualifications on eligibility to run for or serve on the board of directors. Relevant here, the statute states that a person who has been convicted of any felony in Florida or in a United States District or Territorial Court, or who has been convicted of any offense in another jurisdiction which would be considered a felony if committed in Florida, is not eligible for board membership unless such felon’s civil rights have been restored for at least 5 years as of the date such person seeks election to the board. If this person was not convicted of a felony, this provision of the Act would not apply.

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HOA Board Responsible For Meeting Minutes in Florida

Posted in Official Records, Reader Q&A

Business colleagues in a meetingQuestion: At the first meeting of the new board of directors of our homeowners’ association, there was concern about approving minutes of the last meeting of the prior board. Because the new members were not on the old board, they were hesitant to approve the minutes. Should the new board approve those minutes? (C.S. by e-mail)

Answer: Interesting question, but I believe the answer is yes. The Florida Homeowners’ Association Act requires that minutes be kept of all meetings of the board of directors of the association. The minutes must reflect the vote or abstention of each director present at the meeting. Further, minutes are official records of the association which must be kept by the association for 7 years, and must be made available for inspection by members. The statute does not address the process for approving minutes, particularly when there has been turnover of some or all members of the board of directors.

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Community Update, Volume 8, 2017

Posted in Community Update

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cup_2017_v08In this Issue:

Arbitration Decisions – What are They and Where can I Find Them? helps you locate decisions from the Division of Florida Condominiums, Time
Shares and Mobile Homes.

But, I marked it “Paid in Full” will help you figure out what a restrictive endorsement on an assessment payment from an owner means to your community.

Proper Accounting Matters provides tips aimed at helping an Association preserve its rights to pursue delinquent members.

Florida HOA Boards Must Follow Correct Rule Procedures

Posted in Governing Documents, Rules & Regulations

Businesswoman with a businessman talking in a meetingQuestion: Our homeowners’ association documents say that the board can adopt rules, but don’t spell out how to do it. What procedures that must be followed? Can the board adopt a rule at a regular meeting and then enforce it the next day without providing any special notice to the members? (R.L. by e-mail)

Answer: There is very little in the Florida Homeowners’ Association Act that addresses the procedure by which rules are to be adopted. Particulars regulating rule adoption and notification will largely be addressed in the association’s governing documents.

I have seen provisions that require the board to provide notice of an effective date a certain number of days before a rule can be enforced. I have also seen provisions that state that the rules cannot be enforced until a copy of the newly adopted rules is provided to all members. I have even seen provisions that allow the board to adopt and enforce rules, but then provide the members with the right to veto those rules. None of this is addressed in the Act.

The Act does not say that the board is not automatically given the authority to adopt rules. That authority must flow from the governing documents. In some homeowners’ associations documents I have reviewed, (especially older documents), the board is only given authority to adopt rules regulating the common areas and procedural rules pertaining to the administration of the association. This would preclude the board from adopting rules governing the parcels (lots and homes).

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Fining Procedures Confound Condominium & Cooperative Boards in Florida

Posted in Association Documents, Governing Documents, Reader Q&A, Rules & Regulations, Suspensions, Fines & Remedies, Uncategorized

Side profile of business executives in an officeQuestion: Our association tried to fine an owner who violated our rules, but decided the process was too complicated. Can you provide a step-by-step outline of how fines are issued and collected? (M.G. by e-mail)

Answer: Fines can be imposed against condominium and cooperative unit owners, occupants, licensees and invitees. The law for homeowners’ associations authorizes fines against members, members’ tenants, guests and invitees.
Condominium and cooperative fines are capped at $100 per day, and capped at $1,000 for continuing violations. Homeowners’ association fines may not exceed $100 per violation unless otherwise provided in the governing documents. There is also a $1,000 aggregate cap, but again, the governing documents may permit a greater (or lesser) aggregate fine.

This is generally how it works:

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At Your Service: Condo Call-In with Donna DiMaggio Berger of Becker & Poliakoff

Posted in Elections, Fire Sprinklers, Governing Documents, Legislation, Voting, Water Sprinklers

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Donna Berger, Florida Condo LawyerFlorida Legislators have filed bills which could give Condo and Homeowner Association boards a double-take. If passed, a volunteer board member could face criminal penalties if Association records are stonewalled, or if there are fraudulent elections.

Might residents avoid trouble by choosing to stay off condo boards? Learn more on the Topical Currents “At Your Service” condo call-in edition.

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Florida HOA Board Must Follow Correct Rule Procedures

Posted in Association Documents, Governing Documents, Rules & Regulations

Businesspeople analyzing documentsQuestion: Our homeowners’ association documents say that the board can adopt rules, but don’t spell out how to do it. What procedures that must be followed? Can the board adopt a rule at a regular meeting and then enforce it the next day without providing any special notice to the members? (R.L. by e-mail)

Answer: There is very little in the Florida Homeowners’ Association Act that addresses the procedure by which rules are to be adopted. Particulars regulating rule adoption and notification will largely be addressed in the association’s governing documents.

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Becker & Poliakoff Offers Condominium & HOA Classes Throughout Florida

Posted in Education, Events

Condominium Education Classes in Florida

We are committed to sharing our legal knowledge to help others. We do so by offering State-approved educational resources in various forms, including more than two dozen courses, conferences, panel discussions, personal meetings, and webinars that you can conveniently attend from your office or home. With this many available options, it is easy for your board and manager to have the tools you need at your disposal. Please scroll below to see what is currently being offered in your area and click on a class for registration information for that particular class. We hope to see you soon!

HOA Board Certification Course: Everything you Wanted to Know About Being a Board Member
Hobo Sound, March 29, 2017

Legal Day of Education Event: Is a “No Pet” Building a Things of the Past? & HOA/CONDO/CO-OP Board Certification Course
Ft. Myers, March 31, 2017

CAM CEU HAPPY HOUR: Anatomy of a Water Leak and It’s Not That Equip that Dries Courses
Pompano Beach, March 31, 2017

Lunch & Learn: Condo Construction Defects 101
St. Augustine, April 4, 2017

Disaster Preparedness and Recovery: Are you Ready to Ready to Weather the The Storm?
Sarasota, April 6, 2017

HOA/CONDO/CO-OP Board Certification Course: Everything You Wanted to Know About Being a Board Member
Ft. Walton Beach, April 7, 2017

Condominium Board Member Certification Course
Stuart, April 12, 2017

Lunch & Learn: Housing for Older Persons
West Palm Beach, April 12, 2017

Condominium Board Member Certification Course
Miami, April 19, 2017

HOA Board Certification Course: Everything You Wanted to Know About Being a Board Member
West Palm Beach, April 19, 2017

Ask a Lawyer!
Tampa, April 26, 2017

Covering your Assets: Avoiding Board Member Liability
Ft. Lauderdale, April 27, 2017

Condo Association Insurance Seminar
Ft. Lauderdale, May 2, 2017

HOA/CONDO/CO-OP Board Certification Course: Everything You Wanted to Know About Being a Board Member
West Palm Beach, May 10, 2017

Condominium Associations Should List Their Attorney as the Registered Agent

Posted in Fiduciary Duty of Board of Directors, Governing Documents, Liability, Reader Q&A

Talking on the phoneQuestion: I am the President of my condominium association.  I just found out that the association was sued by a disgruntled owner.  Unfortunately, I just recently learned that the association has been “defaulted” in the lawsuit because we failed to answer the lawsuit by the deadline.  Apparently the process server served a member of the community who hasn’t been on the board in over five years.  This person is apparently still listed as the registered agent for the association, which is apparently why they were served with the lawsuit.  Isn’t the process server required to serve the lawsuit on a current director?  And what can we do now to address the default?  J.H. via e-mail

Answer: The problem you highlight in your question is not uncommon.  Community associations are corporations and required by law to designate a registered agent.  The registered agent is the corporate representative who is served with formal legal papers and process, such as the summons and complaint when a lawsuit is filed.  The process server will confirm the identity and address for a corporation’s registered agent from the online records of the Florida Division of Corporations (www.sunbiz.org).  There is no requirement for the process server to confirm that the registered agent for a community association is a current member of the board of directors.  The process server is permitted to rely on the latest records filed with the Florida Division of Corporations.

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Condo Criminal Penalties Bills, Fire Sprinkler Bill, and Estoppel Bill to be Heard in Committee this Week; New HOA Rental Bill—CALL Alert for March 20, 2017

Posted in CALL Alert, Fire Sprinklers, Legislation, Rental, Water Sprinklers

Community Association Leadership Lobby

Yeline Goin, CALLCondo Criminal Penalties Bills

Senator Rene Garcia and Representative Jose Felix “Pepi” Diaz filed SB 1682, Relating to Condominiums, and HB 1237, Relating to Condominiums, respectively, which include board member term limits and criminal penalties against volunteer board members for certain violations, including failure to provide access to official records and fraudulent activities related to the election of directors.

While there is no doubt these legislators are rightfully seeking to correct the election fraud and financial crimes problems which were identified in the recent Miami Grand Jury Report, some of the provisions in these bills will create new problems in addition to the ones they are seeking to fix. It is too early to tell if online voting will help prevent some of the fraud which has been identified with the current paper voting system but that law was passed, in part, to do just that. Perhaps we should wait to see if last year’s legislative fix has been effective before looking to criminalize actions related to elections.

Director term limits have been discussed for years but most people agree that the bigger problem is the lack of people interested in serving on community association boards, so preventing those who are willing to serve from doing so is not the most productive idea.

In our opinion, it is not good public policy to criminalize violations of civil (real estate) laws unless a crime has been committed (e.g. theft or forgery).  Unpaid volunteer board members should not be held criminally liable if, for example, they fail to turn over records within 10 days or if they incorrectly count a ballot that should have been disregarded.  In many communities, these functions are not handled by board members but are delegated entirely to the professional manager. The over broad criminal penalties in the bills may have a chilling effect on the ability of associations to find qualified persons to serve on a board.  It is important that any criminal penalties be narrowly drawn to deal with the extreme cases.  Notably, while the bills seek to address many of the problems which stem from a lack of state resources, they do not address the fact that over the past 6 years, the State has “swept” over $20 million from the Condominium and Cooperative Trust Fund for other State programs.  Any reform of the laws governing condominiums must include a provision ensuring that the money that is sent to Tallahassee by condominium and cooperative unit owners is used for the benefit of the State’s condominium and cooperative owners.  For a full explanation of the bills, please see my Blog Post:  New Condo Bill Includes Criminal Penalties. 

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