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Insights Into Your Role as a Board Member | Oct 14

Insights Into Your Role as a Board Member: Fiduciary Duty & Business Judgment Rule

Where: Zoom

When: October 14, 2021 | 1:00pm – 2:00pm EDT

If you agreed to serve on your board, you will want to be sure you have the tools and information necessary to understand your responsiblities, discharge your duties in accordance with the applicable law and your governing documents, and avoid any potential liability associated wiht your new role.

Topics of discussion include:

  • The fiduciary duty of a board member to the association
  • How to protect the association and themselves from liability while conducting association business
  • The most frequent mistakes made by board members

 

1 IFM or 1 ELE Credit

 

Provider: #0000811

Course: #9630161

 

PLEASE NOTE: Instructions to receive certificate of completion or CEU credit will be emailed 1-2 days after the class has concluded.

SPEAKERS:

Becker - Joseph Adams
Joseph E. Adams
SHAREHOLDER
Becker
jadams@beckerlawyers.com

Becker - Jay Roberts
Jay Roberts
SHAREHOLDER
Becker
jroberts@beckerlawyers.com

Who is Responsible for a Limited Common Element?

The sidewalk, the road, the park bench, the elevator, the streetlights, and more belong to and benefit everyone in a homeowners association. These common areas or common elements are shared property maintained by the association and enjoyed and used by all residents. The money for repairing and replacing these elements comes from the community’s operating budget or reserves, which are funded by everybody’s collective annual assessments.

Condominium balconies, parking spots, roofs, and sometimes even windows and doors—while designated for the exclusive use of one resident—also are considered part of a community’s infrastructure. But who is responsible for maintaining and repairing a common element that’s used by only one household?

The resulting disputes happen more often than you might imagine and are diverse and complicated to resolve. But according to some attorneys in this business, the answer to most of the conflicts are readily available.

Defining Limited Common Elements 

“There’s exactly one thing that determines if something is a limited common element,” says Adam Cohen, an attorney with Pullman & Comley in Hartford, Conn. “And that’s if the (association’s) declaration says it is.”

“Maintenance, repair, and replacement of a limited common element is usually the responsibility of the association except to the extent the declaration shifts that duty to the unit owner,” writes Cohen in “What Exactly Is a ‘Limited Common Element?,’ ” a 2012 article in Common Interest magazine, a CAI Connecticut Chapter publication. “Some declarations make the unit owner completely responsible for replacing windows and doors, while other declarations say the unit owner need only remove leaves and snow from the front porch but is not responsible for substantive repairs.”

It’s essential that board members, attorneys, and community managers look to an association’s covenants, conditions, and restrictions (CC&Rs) for the definition of their limited common elements—and who has the responsibility for their upkeep.

State statutes also are good resources in identifying limited common elements and who’s responsible for them, says Marshal Granor, principal at Granor Law Firm in Horsham, Pa., and a fellow in CAI’s College of Community Association Lawyers. “A limited common element’s definition can vary based on the original builder or developer’s concept,” says Granor. “It also might have been changed over time by the association.”

Granor also concedes that it’s possible an association’s CC&Rs—or even the state statute—were written in a way that gives the association board the authority to assign limited common elements. “I like this approach because it’s awful if you have to get a super majority of owners to vote that Mrs. Smith’s deck is a limited common element,” Granor says. “You just don’t get that kind of (owner) involvement most of the time.”

Obvious Limited Common Elements

Although Cohen is adamant that “a limited common element is whatever the declaration says is a limited common element,” he concedes that Connecticut’s statute also indicates that “certain things are presumed to be common elements unless the declaration says otherwise.”

“Balconies are the most recognizable limited common elements,” according to Colin Horner, CMCA, AMS, PCAM, former general manager at Fairlington Villages Unit Association in Arlington, Va.

Unseen Limited Common Elements

But who—unit owner or association—is responsible for the wiring or plumbing pipes found throughout a condominium? The owners who live within such a community expect them to work. After all, the pipes transport hot and cold water and gas into a unit and remove wastewater, and the wiring provides electricity, cable, and internet service. The pipes and wiring run throughout the building and, at some point, enter the unit within the studs.

Assuming an individual’s ownership in a condominium is from the studs in, who is responsible for the maintenance and repair of the plumbing or wiring beyond the studs? Also, critical, if the association is liable for remediating a leaky pipe, does it have the right to access it through an individual homeowner’s property to make repairs? If an association’s CC&Rs are ambiguous, it’s essential for homeowners to correct that and make them more specific.

HOAresources.com explores questions and comments from community association members living in condominiums, homeowners associations, and housing cooperatives. We then assemble trusted experts to provide practical solutions to your most commonly asked, timely questions. We never use real names, but we always tackle real issues. Have a question or comment about your community association? Submit here for consideration:

Submit a form.

Reserve Expenses vs Operating Expenses

One of the most common questions we get is, “Can I pay for this through Reserves?” If you are still unclear on what qualifies as a Reserve expense, watch the video above!

Understanding Reserves

Click Here to Download Chapter One for Free!
Understanding Reserves is a comprehensive Reserve Study guide for board members and community managers. Besides answering common questions related to Reserve Studies, we thoroughly address each facet of the Reserve Study process. Download Chapter One to get a glimpse at the book that could serve as your go to Reserve Study resource!

 

Landlords of Brevard County – Emergency Housing Program

In a partnership between HUD, the Housing Authorities and Brevard Homeless Coalition we would like to invite you to participate in a limited program.

There are only a total of 117 participants in this program throughout Brevard County, so do not wait!

If you have any questions or concerns, feel free to contact me directly.

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2021 Legislative Update – Condominium Associations

As you may be aware, the Florida legislature was quite active this year and passed several bills
affecting condominium associations. These laws took effect on July 1, 2021. The following
provides a brief summary of some of the more significant changes made of which you should take
note (this is not an exhaustive list). Of course, if you have any questions or concerns, please contact
me.

§ 718.111(12)(a)11 and (b), Florida Statutes
Bids for work or for materials, equipment, or services must be kept at least 1 year after receipt of the
bid.

§ 718.111(12)(c)1 Florida Statutes
An association cannot mandate that unit owners provide reasons to inspect official records.
Renters must be given access to the declaration, bylaws and rules, but they have no rights to other
official records.

§ 718.112(2)(d)2, Florida Statutes
Board member 8 year terms limits shall run from the first day of any term beginning on or after July
1, 2018. Clarifies that the 8 years does not include any time served prior to July 1, 2018.

§ 718.112(2)(d)2, Florida Statutes
Members of an association’s board of directors can be disqualified only for a delinquency in the
payment of assessments instead of “any monetary obligation” (which was the previous language,
and included fines).

§ 718.112(2)(f)1, Florida Statutes
The board must adopt the association’s annual budget at least 14 days prior to the start of the
association’s fiscal year. If a board does not adopt a new budget as required, the prior budget shall
stay in effect until a new budget it adopted. Failure to timely adopt a budget twice shall be deemed
a “minor violation” and could subject the association to monetary penalties as set forth in the Florida
Administrative Code.

§ 718.112(2)(I), Florida Statutes
If authority to charge a transfer fee is set forth in the governing documents, the upper limit for the
transfer fee is raised to $150.00 per adult applicant. The amount of the fee will increase in
accordance with the Consumer Price Index every 5 years.

§ 718.116(6), Florida Statutes
Notices of an association’s intent to lien, and its intent to foreclose, must now provide 45 days to
comply instead of 30.
Before sending a delinquent account to the association attorney, a new, form 30-day courtesy notice
must be provided to the owner.

§ 718.1255, Florida Statutes
A party may now choose whether to pursue an arbitrable dispute via non-binding arbitration, or
alternatively via presuit mediation followed by a lawsuit. Previously, arbitration was the only and
mandatory choice for arbitrable disputes.

THE CDC EVICTION MORATORIUM HAS BEEN STRUCK DOWN BY THE SUPREME COURT

ALL EVICTIONS CAN BE STILL BE FILED AS NORMAL  –  30 DAY NOTICE OF NONPAYMENT OF RENT REQUIREMENT FOR “CARES ACT COVERED PROPERTIES” IS STILL IN EFFECT

6 minute video explaining the current situation.
The CDC Eviction Moratorium has been struck down by the Supreme Court but it is crucial to stay informed. Updates are found on www.evict.com 
All evictions can be filed as normal, and the special “notice” advising the tenant of the CDC Order protection no longer needs to be provided.

The latest guidance from HUD regarding the CARES ACT states that IF the property is covered under the CARES ACT, the 30 Day Notice of nonpayment of rent must be used rather than the usual 3 Day Notice. 

YOUR CURRENT OPEN NONPAYMENT OF RENT EVICTIONS 
The final step (removal by the Sheriff), can now occur if an eviction was held up by a CDC Declaration.  
IF NO CDC DECLARATION HAD BEEN SUBMITTED BY THE TENANT:
Most nonpayment cases were already moving through in most counties and will continue to do so.

STEPS YOU NEED TO TAKE NOW:

FOR DELINQUENT TENANTS WHERE NO EVICTION HAS BEEN FILED YET –
1. If you want to file an eviction, confirm you did not sign any Assistance forms stating that you would wait for funds and hold off on filing an eviction.
2. Confirm if you are CARES ACT covered or not.
3. Confirm your 3 (or 30) Day Notice is correct.
4. Confirm your 3 (or 30) Day Notice does not have excessive accumulated late fees.

FOR FILED EVICTIONS IN PROGRESS THAT WERE HELD UP BY THE CDC ORDER –
Confirm you have NOT accepted any funds during any open and held up eviction.  We are confirming this with you prior to having the Writ of Possession issued.
 

YOUR NONRENEWAL/NONCOMPLIANCE EVICTIONS:

In most cases, these evictions have been moving through fine and will continue to do so.
YOUR OPTIONS FOR FILED EVICTIONS AND EVICTION AVOIDANCE TECHNIQUES
You still have options with your Tenants.
CASH FOR KEYS – This is often a viable method.  Download the form we provide if needed.
AGREEMENT TO VACATE – Many Tenants will indeed sign an Agreement to Vacate form.  Please see the video we have on this topic and download the form if needed.
RENTAL ASSISTANCE FUNDS
Money is still being allocated by the government for rental assistance funds to the Tenant and directly to the Landlord. Keep seeking these funds out.

If an eviction is OPEN, contact us FIRST before accepting any assistance or signing any assistance paperwork.
CLICK HERE FOR INFO ON FINDING EMERGENCY RENTAL ASSISTANCE FUNDS

PAYMENT PLANS AND STIPULATIONS
Nothing is stopping you from accepting partial rent or entering into payment plans.  If you are dealing with a CURRENT OPEN EVICTION, contact us first before accepting any money so we can get you a STIPULATION.

FEEL FREE TO CALL OR EMAIL US AT ANY TIME. IN DOUBT?  CONTACT US at info@evict.com or call 1 800 253 8428

 WWW.EVICT.COM 

ONLINE EVICTION FILING
EVICTION STATUS
EVICT.COM