Florida Condo & HOA Legal Blog : Florida Condo Lawyer & Attorney : Becker & Poliakoff Law Firm : Condominium & HOA Law Blog

Tired of ever increasing electric bills? 

Have you ever really looked closely at your community association's electric bill?  Do you understand all of those charges and fees?  If not, there may be money waiting for your association to claim as a refund.

The Florida Administrative Code provides a sales tax exemption on electric power when that power is sold to and used by cooperatives, condominiums, and certain other residential facilities including, in many cases, homeowners associations.  In order to obtain the exemption, the utility provider must have written documentation on file establishing that the customer is entitled to the exemption.  

FPL requires customers to complete a certificate that indemnifies it from any liability for failing to collect and remit the tax to the Department of Revenue.  You can find the Exemption Certificate on its website.

That's where it gets a little tricky.  According to the code, if any part of the electric power or energy is used for a non-exempt purpose, the entire sale is subject to tax.  So if your electrical service powers a restaurant that is open to the public, a golf course that charges greens fees or any other facilities that require payment of a fee, you may be out of luck.  What if your electrical service powers the residential tower (common area hallways, elevators and the like) and portions of the property that are non-exempt?  Under the current codes that means you are responsible for sales tax on the entire bill.  It is not acceptable to make calculations or allocate the percentage of exempt and non-exempt uses that run through a single meter.   Separate meters are required when you have exempt and non-exempt facilities.

It gets even trickier when there are uses that are ancillary to the residential use.  Does your community have a sales and leasing office?  What about an office used by the property manager?  Will that use as an office eliminate the exemption?  Some tax guides clearly say "yes" - any use other than residential use means taxes must be paid on the entire usage from that meter.   Even simple vending machines or coin-operated laundry machines powered by the same meter may thwart your efforts.

If your association qualifies for the exemption but has paid sales tax on electric bills, ask the Department of Revenue for a refund.  The law allows the customer to obtain a refund for taxes paid for up to 36 months.

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We are happy to feature video clips from time to time on this blog.  The post from the other day spurred several questions regarding unit owner access to official records.  Please listen to our Community Association Practice Group Leader discuss this important subject.

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What is your policy for handling records inspections by owners?  Do you have written rules?  Where are the records inspections held?  How many hours does the owner have to review the requested records?  Does anyone help facilitate the inspection?

If you are a condo or HOA board member and cannot answer these questions, its time to consider rules governing owner record inspections.  Association leaders must understand their obligation to allow member access to records to avoid costly disputes that may increase tension in the community.

The Division handles numerous complaints from condo owners claiming that associations fail to allow access to the Official Records.  Sometimes those complaints, and arbitration cases, result in fines against the association.  Other times the association clearly shows that the owner was wrong in one way or another.   The Division publishes a very comprehensive practical guide for use by community leaders (board members) and homeowners.  While the Condominium Act forms the basis for the guide, HOA leaders and owners should find it useful as well as the laws are similar (but not the same so please consult with counsel).  You can download the guide HERE. 

There are some records that are not accessible to owners. Those records include:

1. Any record protected by the lawyer-client privilege as described in s. 90.502 and any record protected by the work-product privilege, including records reflecting mental impressions, conclusions, litigation strategy, or legal theory of the attorney or the association prepared in connection with pending or anticipated litigation/adversarial proceedings.
2. Information obtained by an association in connection with the approval of the lease, sale, or other transfer of a unit.
3. Personnel records of association or management company employees, including, but not limited to, disciplinary, payroll, health, and insurance records.  However written employment agreements or budgetary/financial records showing compensation is still open to the owners.
4. Medical records of unit owners.
5. Social security numbers, driver’s license numbers, credit card numbers, e-mail addresses, telephone numbers, facsimile numbers, emergency contact information, addresses of a unit owner other than as provided to fulfill the association’s notice requirements. An owner may agree to allow the association to disclose contact information. The association is not liable for the inadvertent disclosure of information if it is included in an official record of the association and is voluntarily provided by an owner as opposed to being requested by the association.
6. Electronic security measures that are used by the association to safeguard data, including passwords.
7. The software and operating system used by the association which allow the manipulation of data, even if the owner owns a copy of the same software used by the association. Only the data is part of the official records of the association.

 What rules are valid and what rules are unreasonable when it comes to record inspections?  Some of the Division rulings may surprise you - we will provide some examples in a future post.

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Investing the Association's Funds?  If so you should be familiar with the Prudent Investor Rule.

Does your association have a written policy with regard to investment of association funds? If so, does the board of directors monitor the investment to ensure compliance with the policy, and, is the policy reviewed and updated from time to time? If not, is the board of directors exposing itself to needless liability under both common law and statutory obligations of prudent management?

Whether your association is a condominium association governed primarily by Chapter 718, Florida Statutes, or a Homeowners association governed primarily by Chapter 720, Florida Statutes, it is imperative that the governing body of the association invest association funds in a reasonably prudent manner. In serving as directors and/or officers of these corporations, individuals expose themselves to liability for mismanagement and, in many cases non-management, of association funds. Officers and directors sit in a position of trust and confidence, requiring that their actions be exercised in good faith and in the best interests of all unit owners. For example, since all budgets must include reserves for capital expenditures and deferred maintenance, unless waived in accordance with Section 718.112(2)(f), Florida Statutes, a primary responsibility of the board is the protection of, and hopefully the enhancement of, the association's reserve funds.

Boards of directors are faced with the delicate task of balancing their financial goals, needs, and obligations. On the one hand, the association wants a strong return or yield on its investment, sufficient to meet the ever-increasing costs of repair or replacement of common areas. On the other hand, it is necessary to maintain sufficient liquidity in the event of an emergency. The security or safety of the investment is equally important. Therefore, boards of directors are faced with legitimate and substantial questions, such as: whether or not to hire a professional money manager, what type of investment policy should be adopted, and how best to monitor the portfolio, once a policy is implemented.

Community Associations Institute (CAI) recommends associations invest only in savings accounts, FDIC-insured certificates of deposit, U.S. Treasuries and government agency bonds. Board members need to consider the goals and objectives of the association as well as regular income and its existing capital. Risky investments are not appropriate.  However, in this day and age when interest in savings accounts is practically zero, what other types of investments will suffice?

Keep these maxims in mind:

• While a director can delegate investment authority to fellow directors or third parties, they must continue to supervise and monitor these activities.  You can delegate authority, but cannot delegate responsibility.
• Appointing an investment committee is not a bad idea, but that doesn't mean the other directors can ignore the association's financial position. If there are committees, make sure they meet and conduct the business they are charged with in compliance with the statutes. Final decisions should be made or ratified at a meeting of the board and there should be minutes of committee meetings or recommendations.
• Some governing documents contain language hindering a well-thought out investment plan. You may need to amend to implement a suitable investment policy.

Take the advice from Sergeant Phil Esterhaus from Hill Street Blues and be careful out there. ...

 

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The burden is on the association to show that all required steps for adoption of assessments are completed – and documented.

Section 718.112(2), Florida Statutes, sets forth a list of provisions that condominium association bylaws must contain and states that if the bylaws do not contain the listed provisions, they shall be deemed to include them. With regard to procedures for adoption of non emergency special assessments, the statutory requirements set forth in Section 718.112(2)(c), Florida Statutes, are:

• Written notice incorporating an identification of agenda items mailed, delivered, or electronically transmitted to the unit owners (if owners have consented to electronic transmission and the documents so allow) and posted conspicuously on the condominium property not less than 14 days prior to the meeting;
• Evidence of compliance with the 14-day notice by an affidavit executed by the person providing the notice and filed among the official records of the association;
• The notice shall specifically state that assessments will be considered and advise the nature, estimated cost, and description of the purposes for such assessments; and
• Written notice of any special assessment levied by the association must be delivered to each unit owner, including a statement of the specific purpose or purposes of the assessment. (See Section 718.116(10), Florida Statutes).

Notice of meetings at which a proposed annual budget (a non-special assessment) will be considered by the board of directors or unit owners must also be delivered to each unit owner, mailed to each unit owner at the address last furnished to the association by the unit owner, or electronically transmitted to the location furnished by the unit owner for that purpose, and evidence of compliance with these requirements must be documented by an affidavit of the person providing the notice, with the affidavit being filed among the association’s official records. (See Section 718.112(2)(e), Florida Statutes).

Failure to comply with notice requirements in connection with the adoption of a budget or a special assessment, or failure to document compliance, can result in loss of ability to obtain enforcement of the collection of an assessment from a defaulting unit owner.

Evidence of compliance with the requirement of posting and delivery to all unit owners of timely notice of meetings at which association budgets or special assessments will be considered is typically not a problem. While seemingly simple and perfunctory, failure to comply with, and document compliance with these statutory requirements, can cost the association its ability to collect an assessment. It can also result in the expense of having to go through the entire process again in order to correct the procedural deficiency.
 

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The Florida Community Association Journal has featured articles about the Communities of Excellence Award winners over the past year.  All of the finalists showed wonderful initiative.  Its really a pleasure to see community volunteers work side-by-side with management (and staff) to improve their situation and community life.  Many of the associations in the Financial Innovation category suffered major hardships - all of them had significant delinquencies and resulting budget shortfalls.  Improving collections and re-negotiating existing contracts were typical strategies employed by associations to increase revenue and reduce expenses.  The bulk of the finalists took advantage of the 2010 legislative changes that allowed community associations to collect rent directly from tenants when the owners failed to pay assessments.

Two winners stood out for thinking 'outside the box'.  

The Village Walk Homeowners Association in Sarasota investigated the costs of retrofitting/upgrading traditionally powered heating and cooling equipment.  The manager found the costs were comparable to a geothermal system after figuring in the government discount for employing renewable energy resources.  Installing geothermal heating for the two pools paid for itself in 18 months and now the association saves $65,000.00 annually.  The cooling system for the restaurant improved indoor air quality, maintained a far cooler temperature and saves the association 10% on energy costs each year.  The system is more powerful, works better and reduces operating costs all at the same time.

I was at the Communities of Excellence event and honored to present the Trendsetter Award to Central Park at Metrowest.  The board of directors took advantage of a great opportunity and created a "win-win" for the community and local residents.  The association's president learned about a federally funded Back to Work Grant Program.  The association applied to be an employer and was accepted into the program!  The association had the benefit of several employees for 13 weeks - unemployed local residents received a much needed paycheck while Central Park Metrowest received much needed clean up and maintenance work.  This program worked so well that the association participated in a federal summer youth program (also federally funded) the following year.  20 local teens got work experience while the association reduced its vendor expenses.

I think many people would be surprised how much effort it takes to turn a community association around.  Sure, its easy to lament about how 'upside down' you are with your mortgage or to complain about the lack of services and poor appearance of your community when its struggling to make ends meet.  Its much, much harder to pull up your sleeves, figure out what its going to take to improve the community and then implement those initiatives.  It takes dedication and tremendous perseverance to accomplish what these, and other communities, accomplished.  If you haven't participated in the Florida Communities of Excellence program, I highly recommend it - especially if you're thinking that there's no hope for your community.

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With the collection rate being what it is and bank foreclosures taking forever, I understand that Boards do not want to wait any longer than necessary to take action to collect overdue assessments.  Many Boards give management and their attorneys "marching orders" to proceed as quickly and as forcefully as possible and I agree - that is prudent in light of the current economic climate. 

 However, the desire to do something fast should never replace or outweigh the desire to do something right.  Management, legal counsel and the board all need to work as a team.  They need to figure out the best way to handle each situation for the benefit of the community - not run to the courthouse to file a lawsuit in every single case.

Moreover, the team has to do its homework as a team.  You all have to communicate.  The left hand needs to know what's happening with the right hand, especially when it comes to financial matters such as the application of payments made by owners, charges on owners' accounts, levying fines, bankruptcy filings and suspending use rights.

Being quick on the trigger worked against the Wellesley at Lake Clarke Shores Homeowners' Association when the case came under review by the appellate court.  In this case management sent the homeowner a demand letter claiming a certain amount was owed.  The owner responded saying she had canceled checks reflecting payment for that period of time.  The account was turned over to legal counsel which issued another demand letter saying that the first quarter regular assessment and 4 months of special assessment payments were late.  Counsel demanded payment for these assessments, late fees, interest and attorney's fees.  Canceled checks reflecting payment for the first quarter and those specific special assessment installments didn't make the association take a step back and look at the situation.  Instead it filed a claim of lien and foreclosed. 

The owner continued to claim she paid these assessments.  She even paid additional amounts for late fees.  Why did she still owe all this money?  It didn't make sense to her.

In the end it didn't make sense to the Court either.  The trial court calculated the amounts the association claimed were past due.  There was $20,485.08 in total past due assessments.  The owner's records proved she paid the total sum of $20,561.76 to the association for the relevant time period.  The trial court's judgment against the homeowner also included close to $2,000 in interest and late fees in addition to a little over $10,000 in attorney's fees and costs.  After delving into the history of payments and credits deeper, the Court found that this homeowner owed less than $1,000 before the lien was filed and the association didn't even explain how the amounts claimed due on the account were calculated.

The Court almost scolded the association, its management team and counsel by saying:

...the association and its accounting methods were woefully inadequate to correctly ascertain and give notice of the amounts claimed to be due.  Because of this imperfect record keeping, the association did not make a proper claim of lien, nor did it give sufficient notice in its complaint of its claim.  Had it done so, in all likelihood this case would not have even been filed. ...

What can we learn from this case?  Well, of course you must keep accurate records and send accurate disclosures.  There is another very important lesson - if the board took a step back and compared the proof of payments with the assessments due, it would have realized there were simple mistakes made and not escalated the dispute into a full fledged lawsuit. It could have saved money and maintained a better relationship with the owner by working it out before filing.

This case also reminds us to accept partial payments on account.  A previous case held that associations (management company or legal counsel for that matter) cannot refuse payments tendered by unit owners and then continue legal proceedings or foreclosure for the full amount due.

The point is that owners make mistakes from time to time, banks make mistakes from time to time & associations make mistakes from time to time.  Take a step back and think about the association's goals - the goal is to get paid what is owed.  If you can achieve that goal without adversarial action, all the better. 

The decision in this case was just issued on September 7th.  It is therefore subject to rehearing or appeal.

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Budget season for condo/HOA directors may not be as fun as rabbit season is for Elmer Fudd, but both must understand that preparation and regulatory compliance is key.  Elmer must comply with regulations if he wants to take that rabbit home - association directors must comply with budget requirements and procedures if they want the association to successfully collect assessments.

For condo directors:  Does your budget include all the required provisions?  Does it specify the beginning and end date?  Does the budget identify the assessment amount by unit type?  Has the board prepared a current reserve schedule and is that attached (and made part of) the budget?  What notice is required?  We know that Section 718.112(2)(e), Florida Statutes says 14 days notice is required, but do your community documents create additional obligations?  Do you have to give the members the opportunity to vote on the budget - that's not typical but some community documents leave that power to the members rather than the board.  How do you handle costs associated with limited common elements in the budget?

For HOA directors:  Are your budgets in the same exact format as condo association budgets?  Do you mail the proposed budget with notice of the budget meeting?  Do you send it out to the members afterwards?  What about reserve accounts - does your association have statutory reserves, non-statutory reserves and do you know the difference?  Does it contain the appropriate disclosures?

Association leaders also have to contend with year end financial reporting requirements as well.  Do you need an audit?  Are there enough funds in the budget to pay for an audit?  How can you make sure your financial reports will be produced in a timely manner?  How do you distribute the financial reports or do you have to at all (there are options in the statutes)?

The Division of Florida Condominiums, Timeshares and Mobile Homes publishes a very helpful manual.  While the manual is geared toward condominiums, HOA directors may find the information useful this budget season.  Click here for Budgets & Reserves Made Easy.

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Board members learn about and evaluate proposed community projects by comparing different products, services, prices, methods and means to accomplish the same objective.   Community leaders should know that the Florida statutes require competitive bidding for significant contracts.

For condominiums and cooperatives, the statutes requires competitive bidding for service contracts and contracts for the purchase or lease of materials or equipment that cost more than 5% of the annual budget (including reserves). For a homeowner’s association, the requirement is the same, except there is a higher threshold of 10% of the total annual budget, (including reserves). HOAleader recently published articles about bidding, one of them is Save the HOA Money: Create Bidding Guidelines.

The board doesn't have to accept the lowest bid and the law doesn't specify how many bids the board must collect and review.   In fact, sometimes a higher bid is the better choice for the association.  Bids must be kept on file as an official record and made available for inspection by owners, upon written request.  The HOA statute requires the association to keep bids on file for one (1) year. The condo statute includes bids in the section governing accounting records - those are kept for at least seven (7) years.  Many associations make the mistake of throwing out rejected bids to reduce the volume of paperwork in the office.  Unfortunately that may lead to trouble when an owner requests to see those bids later on.

There are exceptions to bidding requirements in Florida for certain contracts.  Many professional services are exempt such as contracts with attorneys, accountants, CAMs, architects and engineers.  Contracts for emergency service are likewise exempt. 

What happens if there is only one provider in the area? If the proposed provider is the only source for that service, equipment or material within the county, the board doesn't need to go through the exercise of obtaining bids from vendors outside the geographic area. 
 

Obtaining more than one bid can give the board greater insight into how to approach a problem.  Nonetheless, it is still a good idea to use professional consultants when the bids relate to a significant construction or repair project as the scope of services may be expressed in a highly technical way.  Some bids may contain the use of proprietary products or services that make it very hard to replace or repair in the future unless the association hires the same vendor.  You certainly want to compare "apples to apples" bids when deciding what products or services are best for your association.

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A case recently issued by the 3rd District Court of Appeal confirms unit owner obligations to pay validly adopted assessments. The Court in Coral Way Condominium Investments, Inc. v. 21/22 Condominium Association, Inc., recited two important statements, one of which was made by the Florida Supreme Court in 1994 in the Ocean Trail Unit Association, Inc. v. Mead, case. Unit owners must understand the following pronouncements:

Avoidance of the payment of a valid assessment, however, is not a remedy available to unit owners to cure unauthorized acts by officers or directors of an association.

A unit owner’s duty to pay assessments is conditional solely on whether the unit owner holds title to the condominium unit and whether the assessment conforms to the Declaration of Condominium and By-Laws of the Association, which are authorized by Chapter 718, Florida Statutes.

Coral Way owned several condominium units in the 21/22 Condominium. It challenged both the need and the validity of a special assessment levied by the Board of Directors. Coral Way claimed that it had evidence that the association paid for items that were not common expenses. It alleged that the association paid legal fees that were not incurred by the association. It also contended that the financial records did not reflect a lump sum payment made to the association in connection with a roof top lease. This unit owner took the position that a special assessment would not have been necessary and the association would have had the funds to accomplish the repairs identified if it accounted for the income associated with the rooftop lease or spent money for non-association expenses.

This issue comes up quite often. I mentioned in the Can Complaints about Association Operations Become a Defense Against Foreclosure post that owners often refuse to pay assessments when they feel the association neglects the property, manages ineffectively or wastes association funds. The case mentioned in that post concerned a set-off. While the facts that support a claim for set-off may be exactly the same as those in a claim for a Breach of Fiduciary Duty, the legal issues are quite different. The 4th District of Appeal made it perfectly clear that even if the Board of Directors breached their fiduciary duties, Coral Way still had to pay legally adopted assessments. Since the association followed the proper procedures and the assessment was to pay for a legitimate repair, Coral Way could not avoid its obligation to pay, even if it was later entitled to reimbursement as a result of wrongful use of association funds or accounting irregularities.

The bottom line result here is very important for unit owners to understand. The association’s obligation to maintain the property and otherwise fulfill its fiduciary duties is completely separate and independent of your obligation to pay validly adopted assessments (pursuant to a budget or a special assessment, as the case may be).
 

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Why do condos & HOAs need to hire attorneys?  Let's just tell the CAM they have to ....

You can complete that phrase a thousand times.  Examples:

• evict that bad tenant
• record a Lien against that owner
• prepare that contract and notice of commencement
• draft amendments to the governing documents, etc.

In these troubling economic times, community associations are looking for their managers to perform as many functions as possible, and with managers being better educated and more experienced, they are more willing to use their knowledge and perform those additional functions. Nevertheless, a manager is restricted to performing tasks permitted by law for a licensed community association manager.  It is unfair to ask or expect your CAM to perform tasks that may expose them to penalties for the Unlicensed Practice of Law (UPL), yet many associations saddle the manager with those tasks in an attempt to save money.  Moreover, many times efforts to save a few dollars here or there backfires on the community association and the manager often gets the blame.

CAMs are expected to understand and know many community association and other laws.  They are expected to know the statutory election process, they are expected to know that official records must be made available for inspection, they are expected to know board meetings cannot be held without notice (except for limited circumstances) as well as a whole host of other information.  So, why is it wrong for the board tell the CAM to prepare and record Claims of Lien or proposed amendments to the governing documents?  Why can't the board ask the CAM to evaluate how case law or statutes apply to your documents?  There's a very important reason why - you would be asking them to commit a crime known as Unlicensed Practice of Law ("UPL"). UPL is punishable by up to a year in jail and a $1000 fine.  

Good managers know when the service requested by the Board exceeds the manager’s authority and will refer the matter to the appropriate professional. A good manager will also refer a matter to the appropriate professional when the manager is unsure whether the matter exceeds his or her authority.  Your manager is not trying to "get out of" doing work or shirking his or her responsibilities when they say the board needs a legal opinion on some issue or the attorney needs to prepare certain documents.   They are protecting your community and adhering to professional ethics.

You may be interested in reading this Opinion issued by the Florida Bar.  The linked document described what actions are considered UPL.
 

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Has your association collected rent from tenants when the landlord/owners fail to pay assessments?  If so, you should be aware that the 2011 Florida community association legislation (HB 1195) includes a form of letter to use when notifying a tenant to make rent payments to the condo or HOA.  The statute clarifies the obligation on the part of the tenant to divert rent payments to the association.  Section 718.116(11)(a), Florida Statutes provides, in relevant part, the following:

Pursuant to section 718.116(11), Florida Statutes, the association demands that you pay your rent directly to the condominium association and continue doing so until the association notifies you otherwise.  Payment due the condominium association may be in the same form as you paid your landlord and must be sent by United States mail or hand delivery to ...(full address)..., payable to ...(name)....  Your obligation to pay your rent to the association begins immediately, unless you have already paid rent to your landlord for the current period before receiving this notice. In that case, you must provide the association written proof of your payment within 14 days after receiving this notice and your obligation to pay rent to the association would then begin with the next rental period. Pursuant to section 718.116(11), Florida Statutes, your payment of rent to the association gives you complete immunity from any claim for the rent by your landlord for all amounts timely paid to the association. 
 

The 2010 statute already protected tenants against eviction by the landlord when payments were made to the condo or HOA as a result of the association's demand.  That didn't stop landlords from threatening eviction or otherwise intimidating tenants though.   There should be less and less resistance as more Florida residents become aware of the law - hopefully improving the association's bottom line!

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A local community activist recently asked several industry professionals to answer questions submitted to her by community association board members.  You can check this site over the next several days to see my answers to some of the questions:

Question Regarding Authority of the Manager and Competitive Bids: We are in a community where we were just billed a great deal of money for electrical work and were told "the Management's electrician did the work".  We are wondering why it is not under the maintenance provided under our contract? Why is the electrician not handled like every other vendor then-where [we get bids for] the work?

Answer:  Your first task is to review the contract with the management company. Many management contracts give the manager the authority to effectuate repairs for certain items without advance board approval. In the vast majority of cases, the manager’s authority is restricted to a specific dollar amount (i.e. $500, %1,000 or higher in emergency situations). If you don’t have this limitation, make sure your board includes one in the next renewal or simply address this issue with the manager now (by board resolution) so everyone is on the same page when it comes to association expenditures. The manager needs direction from the board when it comes to repairs – some boards want the manager to “simply take care of problems”, while other boards want to be more involved and formally approve the scope of the work in addition to selecting the contractor to perform the work.

Second, you need assurances that any work was done by licensed and insured professionals and that the work was properly permitted, if a permit was required for the work. The management company should have no problem with providing you with verification of license and insurance.

Note:  We have included information on this site about building permits and contractor licensing requirements.  Please see Protecting the Association Against Unlicensed Contractors and Does the Association Need a Building Permit?  for more information.

Condo and HOA laws require bids generally if the work to be performed will cost more than 5% (condo) or 10% (hoa) of the annual budget. There are exceptions for specific types of professional services and most boards will obtain competitive bids for any project expected to cost more than a couple thousand dollars (sometimes less), to make sure the cost of the work is not out of the ordinary.
 

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LIVE WEBINAR
Disaster Planning for the 2011 Hurricane Season - Are You Ready to Weather the Storm?

Wednesday, June 1, 2011
10:00 AM– 11:00 AM 
 

Hurricane Season is officially here. While we have had a couple of years in Florida that have perhaps lulled us into a certain complacency, the prediction in 2011 is for nine hurricanes in the Atlantic. Are you ready to weather the storm?

Join Bill Strop, who will moderate this webinar, and Rob Rubin and Sanjay Kurian, to learn about recent cases and experiences resulting from recent disasters that will affect how you prepare yourself and your community before the storms hit.  Both Bill and Sanjay are Florida Board Certified Construction Lawyers with tremendous expertise in repair/reconstruction issues.  Bill and Rob both spent years working on behalf of insurance companies, so they know the tactics and techniques relied upon by carriers to deny or discount claims.
 

William Strop, Esq. Fort Lauderdale	Sanjay Kurian, Esq. Fort Myers	Robert I. Rubin Esq. West Palm Beach

Click below to register and you will receive a confirmation email with information on how to participate
 

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The Cohn decision follows long-standing precedent in Florida regarding the applicability of statutory amendments to condominium or community association operations.  If the governing documents of the association contain "magic language"  incorporating statutes (in this case, the Condominium Act) as amended from time to time, statutory changes impact operations, rights and obligations of owners, the association governing the owners and, in some cases, third party vendors or service providers.  

With this recent ruling by the Florida Supreme Court you've probably heard statements similar to those below over the past month or so:

"Florida legislators cannot impair contract rights.  Since the declaration for my condominium doesn't limit co-owners from serving on the board together, my wife and I are entitled to both serve at the same time if we are elected." 

"Since the declaration for my condominium does not allow the board to suspend my use rights, I am entitled to use any part of the common areas.  It doesn't matter whether I pay assessments or not."

"The declaration doesn't include amendments to the law, therefore this board doesn't need to bother with the so called 'mandatory' arbitration process, we go straight to a lawsuit to address owner violations."

I've thus far refrained from providing an analysis of the case on this blog.  Since the ruling seems to have created somewhat of a panic among community leaders and managers, a discussion of the broader issue is appropriate.

Article I, Section 10, of the Florida Constitution prohibits the legislature from passing a law “impairing the obligation of contracts”. The U.S. Constitution does pretty much the same.  Declarations of community associations are considered, for most purposes, to be contract. So, the general rule is new laws cannot change the specific rights and obligations set forth in community association Declarations.  However, like all general rules in the law, there are exceptions.  The three major exceptions (that come into play most often with respect to community associations) are:

The "Magic Language" Exception:

This is basically an agreement to be bound by future changes to the law.  The Florida Supreme Court explained that both state and federal court cases in Florida have held that parties to a contract (declaration) voluntarily decide whether the details are protected or allow for future changes to the law.  By incorporating the law "as amended from time to time" in the governing documents, the parties (owners, the declarant, the association) agree that the declaration is subject to future changes in the law.

The Procedural/Remedial vs. Substantive Exception:

This provision in the constitution has been interpreted, by the courts, to only prohibit legislative changes to pre-existing “substantive” contract right. In very general terms, substantive laws address rights and obligations, while procedural laws describe the manner in which those rights and responsibilities are exercised (procedure) and enforced (remedy).   The analysis necessary to determine what is considered "substantive" and what is considered either "procedural" or "remedial" is often tricky.  Disagreements whether something is substantive or procedural/remedial often wind up in the courts (including the dispute in the Cohn case over allocation of voting rights).  This new case reminds us to conduct the analysis before automatically acting as if the new law controls, especially when the governing documents do not contain the "magic language" referenced above.

The Compelling Public Purpose Exception:

Just because a law impairs a substantive contract right doesn't mean it is always unconstitutional (either on a state or federal level).  If it can be shown the law is necessary or appropriate to achieve some compelling public purpose, it will trump pre-existing contracts.  Think about minimum wage or child labor laws.  Think about housing discrimination laws or life and safety regulations.  It was not unusual for early deed restrictions to prohibit people of color (not stated that way) from buying property or living in a community.  It was and still is not unusual for state and local governments to adopt new building codes for life and safety purposes that apply to existing buildings.

Now, think about the ruling from the other end of the spectrum.  If new laws didn't apply to existing communities (unless there was "magic language") many owners would not have the right:

• to attend or participate at board meetings
• to review financial records
• to display the U.S. flag
• to invite public officials or candidates to speak
• to prevent the board from materially altering or substantially changing condominium common elements
• to install hurricane shutters and much, much more

Consequently, there is no reason to be overly alarmed as a result of this Florida Supreme Court ruling.  Yes; you may want to discuss the pros and cons of adding language to the governing documents to incorporates future statutory changes with counsel.  Yes; you should consult with counsel before taking action solely in reliance on the language contained in new laws.   However, you should not automatically assume none of the laws apply to you (as owners, community leaders, managers, etc.) simply because you cannot find the "amended from time to time" language in the documents governing your community.

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I promised an update on the Master Association Blocks Owners from Pool and Recreational Facilities post when a result became known.   A Palm Beach County Circuit Court Judge ruled yesterday that the Master Association governing the Quail Run community was not entitled to suspend use of the recreational facilities by all of the owners in one of the condominiums within the community.  The Court found that Section 718.303, Florida Statutes did not allow the Master Association to suspend the use rights of the compliant, paying owners, due to delinquencies on the part of a few.  Part of the Order says:

"The statute requires that each delinquent member be treated singularly as the Court finds that the statute does not provide that a member who is current in his or her obligations be penalized for payment failure of another member who is delinquent."

Since this is an interim Order in a Circuit Court case, it does not have precedential value, meaning it does not rule over other cases.  However, the ruling reflects one Judge's interpretation of the law.  Thus, community leaders are encouraged to discuss the authority to suspend use rights for an entire subdivision as well as the possible consequences of that action with counsel.

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We receive a number of reader inquiries on a weekly basis.  In most cases a response to the inquiry is included in the comment field itself, after the relevant blog post.  Here are a few of the inquiries received in the last week, with our responses:

QUESTION: How can I learn if my townhouse is FHA certified?

RESPONSE: Go to this website to look up your community: https://entp.hud.gov/idapp/html/condlook.cfm

QUESTION: Do Florida Statutes address a CPA audit report that is anything other than a unqualified report? For example: The Board of Directors declines to present a statement of cash flows and a qualified report is issued by the CPA.

RESPONSE: The association's members can vote to waive an audit for three (3) consecutive years and during that time merely produce a report of cash receipts and expenditures. The Association must engage an accountant to prepare an audit in the fourth year if the revenue exceeds $400,000.

QUESTION: We are an 11 unit condominium. Must we send a 60 day first notice of our Annual condominium meeting? Do current Florida condominium statutes and bylaws govern our procedures?

RESPONSE: Section 718.112(2)(d), Florida Statutes allows an association of 10 or fewer units to vote for different election and voting procedures. Generally statutes relating to remedies or procedure will override conflicting governing documents. Condominium elections must be held in compliance with the statutes and yes, the first notice must be furnished to the members at least sixty (60) days in advance.

QUESTION: We need the legal ability to remove a owner who fails to follow condo laws, rules and regulations - not abiding by the 55 and older rule - having a grandson live there. Any help would be greatly appreciated.

RESPONSE: If the community qualifies as Housing for Older Persons (HOPA), then the association can proceed by filing a lawsuit (if in the jurisdiction of the 4th DCA) or file a Petition for Arbitration with the Division of Florida Condominiums, Time Shares and Mobile Homes.
The governing documents must clearly define the occupancy restrictions. Our Firm has successfully handled several cases involving violations of age restrictions.

QUESTION: I am a property manager and hear of associations with rules and guidelines that are not equal. I have found a condo association that allows owners to have pet but renters can not. Can they do this? Would this fall under a discrimination to renters?

RESPONSE: An analysis must be done to determine whether rules and regulations are valid and enforceable in any particular case. I am aware of at least one arbitration decision that upheld a rule prohibiting tenants to bring pets on to the property.

Remember, the information on this site is general in nature and not intended as legal advice.  We try to point you in the right direction, but encourage you to discuss the specific facts and circumstances of issues impacting your association with counsel. 

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Community Leaders Can Reduce Condo & HOA  Budgets by Taking Advantage of Rebate and Incentive Programs. 

We have included various money-saving tips for associations on this blog over the past two years.  The case studies show how some associations trimmed up to $100,000 annually as a result of changed practices - especially through use of Florida Friendly Landscaping and irrigation changes.  This month's Florida Community Association Journal contains several examples of money-saving initiatives on the part of community associations.   Madeira Beach Yacht Club saved close to $20,000 per year on waste removal as a result of its recycling program.  The La Playa Condominium on Longboat Key installed solar panels to heat the pool.  It will "make back" the initial cost of installation in the first two years.  The owners in the Tower Residences in Coconut Grove save approximately 18% per month on electric bills by replacing lighting.  All of these communities are saving money and yours can too if the Board takes the right steps.  Many utility companies offer evaluations, rebates and incentives.  Here are a few:

Florida Power and Light (FPL) offers the following opportunities:

•Free Business Energy Evaluations provide comprehensive analysis of facility energy use and recommendations for cost-effective energy efficiency improvements.

•Building Envelope rebates include window treatments ($0.50-$1.00 per sf), ceiling insulation ($0.10-$0.15 per sf) and reflective roof measures ($0.45 per sq. ft.). Projects must be approved in advance in order to qualify for incentives.

•FPL's Interior Building programs provide incentives for efficient lighting (e.g., rebates of 65 cents to $4 for each linear fluorescent lamp), a variety of HVAC and chiller equipment, thermal energy storage, refrigeration and water heating equipment. Installations must be approved in advance.

Progress Energy offers financial incentives and services for a wide variety of energy efficiency measures and equipment upgrades in existing buildings and new construction including HVAC, motors, lighting, cool roofs, green roofs, roof, thermal energy storage, and window films. The utility also provides cost-shared services for existing buildings including ceiling insulation upgrades, duct check and repair, rooftop air conditioner recommissioning and PTAC/PTHP coil steam-cleaning when walk-through audits suggest these measures.

Through its Energy for Life program, Florida Public Utilities offers free energy audits and project design assistance as well as financial incentives for indoor lighting efficiency retrofits ($100 per kW reduced).

Tampa Electric Company (TECO) offers financial incentives for a range of energy-efficient equipment from lighting and air conditioning (including chillers) to heat pump water heaters and motors, as well as for envelope improvements such as duct repair, insulation and window film. TECO also offers free basic energy audits and very low-cost comprehensive energy audits (for facilities of greater than 100,000 sf or with peak demand over 500 kW) to evaluate facility energy use and opportunities for energy efficiency improvements.

There are so many options for associations to trim expenses by reducing energy use and conserving water its impossible to list them all.  I encourage you to discuss your particular situation with counsel - you may be surprised by what you hear.

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The Firm recently published its last community association newsletter for the year.  For the past few years Volume XII of Community Update is a Year In Review. We take this opportunity to re-visit the articles that appeared in our publication during the past year and hope you find it useful as a reference to the important issues that impact your daily operations. You can access the Community Update archives through the Links section on the right-hand side of this site.

2010 Webinars Available On-Demand

Funding Owner Delinquencies: Collecting Rent From Tenants

Moderated by Lisa Magill, Presented by Scott Petersen and Guest Seth Heller.

Analysis of an Insurance Coverage Lawsuit

Moderated by Ken Direktor, Presented by Robert I. Rubin and Guest Andrea C. Northrop.

As one year ends another begins and so does another series of events intended to benefit our clients, industry contacts and friends. Condominium Board Member Certification classes are scheduled throughout the State and many of you already registered to attend the Annual Community Association Leadership Conference in your area.

Because the goodwill of those we serve is the foundation of our success, it's a real pleasure to say "Thank You" as we wish you a full year of health, happiness and prosperity.

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The Federal Fair Housing Act prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status (including children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18), and handicap (disability).  Florida State and local ordinances likewise prohibit housing providers, including community associations, from discriminating against anyone protected by the law.

You may have an understanding of the fair housing laws and also know that discrimination on the basis of handicap (or disability) includes the refusal to permit reasonable accommodations or modifications.  Are you aware of other protected classifications? Local ordinances, on a county and/or municipal level, also govern actions of housing providers. In addition to the classifications mentioned above, some local ordinances include age, marital status, political affiliation and sexual orientation in the protected classifications. 

Community associations need to be aware of the local ordinances.  A board member or manager may make a statement or take an action in violation of the law for what seems like a perfectly valid reason.  In some cases those decisions ultimately required the association (or management) to pay thousands, even hundreds of thousands, of dollars in damages and penalties.  Some examples include:

• National Origin Discrimination found when the housing provider charged Russian applicants a fee over and above the fees charged to American applicants. 
• An association paid $15,000.00 to a homeowner after it refused to allow him to install a window air conditioning unit in his home.  The homeowner suffered from pulmonary asbestosis, asbestos-related pleural disease, and chronic "irritative" bronchitis.
• Discrimination found when a condominium association would only allow an owner to install a ramp at the rear entrance of her building if she agreed to sign a release stating that she would maintain the ramp at her own expense. 

The Justice Department just announced its largest settlement of a housing discrimination case.  The housing provider (property management) paid $1.25 million to settle claims of failing to grant reasonable accommodations to disabled persons.  Assistant Attorney General Thomas E. Perez said: “Property owners and managers have no excuse for violating our nation’s fair housing laws by refusing to accommodate people with disabilities.”

Board members - please take the time and the effort to understand these and other fair housing requirements.

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SB 1196 made significant changes to the statutes regarding year-end financial reporting requirements for condominium and homeowners' associations. 

Condominium Associations

Condominium associations must provide their members with a year-end financial report (or notice that a report is available, free of charge) within 120 days of the end of the fiscal year. The level of required financial report depends upon the association’s annual revenues.

• Associations with revenues of more than $400,000.00 must produce an audit.
• Associations with revenues of $200,000.00 to $400,000.00 must produce a review.
• Associations with revenues of $100,000.00 to $200,000.00 must produce a compilation.
• Associations with revenues of less than $100,000.00 must produce a report of cash receipts and expenditures. 

However, if the condominium has less than 75 units, the law merely requires a report of cash receipts and expenditures, regardless of the association's annual revenue.  While the unit owners may vote to reduce the level of financial reporting, it is worthwhile to discuss the benefits of each level of review with your accountant.

Section 718.111(13), Florida Statutes directs the Division of Florida Condominiums, Timeshares and Mobile Homes to adopt rules setting forth uniform accounting principles and standards.  The 2010 changes require those rules to set standards for reporting a summary of association reserves.  Communities that reserve on a line-item basis (straight line method) will need to include a good faith estimate disclosing the annual amount of reserve funds that would be necessary for full funding once the Division adopts rules.  Condominium associations should therefore engage in some due diligence when preparing reserve schedules.  A reserve study is always a good idea as it not only provides the basis for the annual reserve schedule, but will also identify the projects requiring priority attention.

Homeowners' Associations

Section 720.303(6), Florida Statutes, part of the Florida Homeowners’ Association Act,  has been amended regarding budgets and reserves, but those changes likewise impact the year-end financial reports.   The 2010 changes distinguish between "statutory" and "non-statutory" reserves.  There are different disclosures required, depending on the type of reserves established.

HOAs that do not include "statutory"  reserve schedules and funding for those reserves in their annual budgets must include the following disclosure in the year-end financial statements:

THE BUDGET OF THE ASSOCIATION DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS. OWNERS MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO SECTION 720.303(6), FLORIDA STATUTES, UPON OBTAINING THE APPROVAL OF A MAJORITY OF THE TOTAL VOTING INTERESTS OF THE ASSOCIATION BY VOTE OF THE MEMBERS AT A MEETING OR BY WRITTEN CONSENT.

HOAs that include "non-statutory" reserve funding in their annual budgets must include the following disclosure in the year-end financial statements:

THE BUDGET OF THE ASSOCIATION PROVIDES FOR LIMITED VOLUNTARY DEFERRED EXPENDITURE ACCOUNTS, INCLUDING CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED IN OUR GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO SECTION 720.303(6), FLORIDA STATUTES, THESE FUNDS ARE NOT SUBJECT TO THE RESTRICTIONS ON USE OF SUCH FUNDS SET FORTH IN THAT STATUTE, NOR ARE RESERVES CALCULATED IN ACCORDANCE WITH THAT STATUTE.

Confused yet?  Well, if you are you'll be interested in the Community Association Officers Forum.  Broward, Miami-Dade and Palm Beach Colleges, in a partnership with Edison State College, is providing free board member training to address these and other issues. Four three-hour sessions include topics of interest to new and experienced board members and, as a bonus, each session has one hour of the newly state-mandated training.
 

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Has Your Cable Provider Offered to Pay a Lump-Sum Fee for Exclusive Marketing or Access Rights? 

Many of my clients have been approached by cable operators with a request for an access agreement or marketing agreement.  Many times these are exclusive agreements, although in my recent experience the provider has limited the exclusivity portions to on-site marketing to residents.  Many times these agreements contain references to voice, video and data services or simply broadband services, without a specific explanation of what those services entail.  Clients are thrilled with the up front lump-sum payment.  

Other types of service providers are also offering community associations, especially large community associations, lump-sum "loyalty" payments in connection with a renewal or extension of the contract.

Those payments can mean tens of thousands of dollars added to the association's coffer to pay past-due bills, maintenance projects and other community expenditures.  Wow - doesn't that sound wonderful?  Who wouldn't want to take advantage of these opportunities?  Money, when you were going to renew a contract anyway?  Money, just for allowing a company to access your community or to hand out flyers every now and then? 

We can thank Milton Friedman for reminding us "there is no such thing as a free lunch".   The money isn't free - there are corresponding obligations of the association in these agreements which, if violated or not performed, subject the association to liability for damages.

Here are just a sampling of the issues to consider:

1. Term/Length of Agreement:  Will this technology change?  Will your community be stuck with a provider for what seems like forever when dozens of new companies have entered the market and those have better services for better prices?   
2. Easement vs. License:  An easement is generally a non-revocable interest in land - it is a valuable property right.  A license, on the other hand, is revocable and allows use without conveyance of property rights.  Does your community have the authority to grant an easement?  Over what property exactly?
3. Exclusivity:  The association is prohibited by law from entering into certain kinds of exclusive contracts.
4. Marketing Rights:  What exactly does the Association have to do to comply?  Does it have to distribute flyers door-to-door by hand?  Who's going to do that?  Do you have to allow the company to go door-to-door?  What about your non-solicitation rules?  What about your security?  
5. Prohibit Unauthorized Use:  Most of the bulk-contracts contain a provision requiring the association to prohibit unauthorized use of the service.  Let's take cable for example - is the association going to inspect each unit or home and turn on every t.v. to determine whether the resident has access to channels outside his/her subscription agreement?  Is the association even permitted to undertake this action?

These and other factors must be taken into consideration before entering into any agreement.  If your community is approached with this offer, please consult your attorney.

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There are only a few short weeks left for Florida's elected officials to pass meaningful legislation and at this point in the session it seems that the HB 561/SB 1196 Bill Package is the most likely to pass. These bills are in a constant state of flux and the information below only highlights major points in the bills (as of April 15, 2010). We encourage you to review the full text of the bills by accessing the Senate’s website here for HB 561 and here for SB 1196 and likewise encourage CALL members to contact the appropriate legislators by using the Legislator Connect feature on its website (www.callbp.com).  Here are a few highlights from the bills:

Fire Alarm Systems: - Amending s. 633.0215, F.S. 

Buildings less than four stories with exterior means of egress and exterior corridors will not have to install a manual fire alarm system (per Section 9.6, Life Safety Code in the Florida Fire Prevention Code).

Fire Sprinkler Retrofit - Amending s. 718.112 and s. 719.1055(5), F.S

Full “opt-out” will be permitted with affirmative vote of two-thirds (2/3rds) of the entire membership. Will only permit reconsideration of opt-out vote once every three years at a special meeting called by a petition of 10% of the voting interests.

Extends deadlines for associations that don’t opt out to the end of 2019.

Elevators – Amending s. 553.509(2)  and 399.02, F.S., (Phase II Firefighters’ Service)

Allows for a five (5) year delay to retrofit with a special access key for elevators in condominiums and cooperatives unless the elevator is replaced or requires major modification.  Allows associations to "opt-out" of elevator operation by alternative power source with affirmative vote of majority of owners of condominium.

Designation of Limited Common Elements by Amendment - Creates s. 718.110(14), F.S. - only in SB 1196

Allows association to designate limited common elements by amendment, so long as the building component is designed for use by specific owners.

Official Records – s. 718.111(12), F.S.

• Individual director liability for failure to maintain or destruction of official records is limited to cases where there is intent to harm the association or one or more of its members.
• Association not liable for unit owner misuse of information obtained from official records.
• Exempts personnel records (disciplinary, payroll, health and insurance records) from unit owner access.
• E-mail addresses, telephone numbers, emergency contact information, and any unit owner contact information other than the addresses to send notices are exempt from unit owner access.
• Association’s electronic or computer security data, including passwords, software and operating systems are exempt from unit owner access.

Common Expenses - Amending s. 718.115(1)(d)1., F.S.

Communication services (as defined in Chapter 202), information services, and internet services obtained pursuant to a bulk contract shall be deemed a common expense. (In HB 561 contracts entered into for these services by the developer or prior to transition may be canceled within 120 days of the transition meeting.)

HB 561 also creates new §718.112(3), F.S. that allows the bylaws of umbrella organizations governing a minimum of 1000 units to employ a marketing firm for the community as a common expense.

Board Eligibility – Amending s. 718.112(2)(d), F.S.

Co-owners in condominiums with more than 10 units cannot serve together unless they own more than one unit or there are not enough volunteers to fill all slots. Does not apply to timeshare condominiums.

Requires directors to supply association with new certification form or take a state-approved education class. Directors are suspended until they comply.

Collections and Foreclosures – Amending s. 718.116 and s. 719.109(3), F.S

Changes mortgagee liability cap from 6 months to 12 months after acquisition of title by foreclosure (or deed in lieu) but retains 1% cap.

Association may demand a tenant pay rent to the association to satisfy delinquency for that condominium unit with written notice to the unit owner. Landlord/owner must provide tenant with credit for any amounts paid to association. Association can evict tenant that fails to comply.

Enforcement Mechanism – Amending s. 718.303, F.S.

• Allows suspension of use rights if owner is more than 90 days past due. Cannot suspend use of limited common elements, utility service, parking spaces, elevators or impede access to/from unit.
• Requires board to vote on suspension/fine at duly noticed board meeting and advance notification to the unit owner.
• Allows association to suspend voting rights after 90 days of non-payment.

Filling Vacancies on Board – Creating s. 719.106 (1) 6, F.S.

Vacancies are filled for remainder of the term by vote of majority of remaining directors, even if less than a quorum or only one director. In the alternative, the Board may hold an election to fill the vacancy.

There are many more provisions - click below for additional content and come back to this site for information on changes to the Homeowners' Association Act (Chapter 720, Florida Statutes) and updates directly from Tallahassee.

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