Blog

Keeping Politics Out of Your Community Association

Not surprisingly, the chatter about whether or not political signs should be permitted in private residential communities has increased as we draw closer to the elections in November.

Let’s first discuss whether or not an owner in a Florida HOA has the “right” to install signs. The short answer is “no” with one exception. FL homeowners’ associations can prohibit all types of signs other than one security sign located ten or fewer feet from the entrance to the home. All other signs including “For Sale” signs, signs installed by vendors doing work at a home, seasonal and congratulatory greetings and political signage may be prohibited IF the board determines that doing so is in the best interests of the community. Naturally, if the members disagree with their board’s decisions they may decide not to re-elect that board in the future.

Some owner signs enhance a community’s charm including seasonal greetings, and in the time of Covid, the congratulatory yard signs letting neighbors know of a child’s accomplishments when a traditional party could not take place. However, other signs cause concern. Many boards dislike the posting of “For Sale” signs as an abundance of those signs may send the wrong signal to both residents and potential purchasers.

And, it goes without saying that political signs these days are capable of igniting deep fractions inside residential communities. One school of thought is that some people’s sensitivities should not dictate others’ ability to promote their political candidate of choice.

The other school of thought associated with political signs is that they do not belong inside a private residential community where they can do more harm than good. The advocates for keeping politics out of communities believe that one’s political ideology is more productively expressed through monetary donations, volunteering for a campaign and/or waging war on social media sites to one’s heart’s content.

Some owners maintain that their constitutional rights are being trampled if their association denies them the right to install a political sign or political flag. In fact, you need a state actor to be the entity violating one’s First Amendment rights in order to mount a sound constitutional argument. In Florida, condos and HOAs have not been found to be state actors so prohibiting political signs and political flags is possible either through a recorded covenant or a board rule if the board has rule-making authority under the governing documents. In the case of Quail Creek Prop. Owners Association, Inc. v. Hunter, 538 So. 2d 1288, 1289 (Fla. 2nd DCA 1989), the Second District Court of Appeal found that an association’s sign restriction was not unconstitutional as “neither the recording of the protective covenant in the public records, nor the possible enforcement of the covenant in the courts of the state, constitutes sufficient “state action” to render the parties’ purely private contracts relating to the ownership of real property unconstitutional.”

Some boards choose to regulate the number and size of political signs and political flags as well as how long they can remain in place. However, when it comes to wording on those signs and what may or may not be considered offensive that requires a more in-depth analysis which some boards understandably wish to avoid. After much debate, many communities simply decide that political signs are best left outside their communities.

The place you call home should be a respite from the world and respites often don’t involve contentious political signage next door.

UNDERSTANDING THE “CDC FEDERAL EVICTION MORATORIUM” AND THE “FLORIDA GOVERNOR’S EXECUTIVE ORDER”

We now are operating under the Governor’s Executive Order and a CDC Federal Eviction Moratorium.

Many Property Managers are extremely confused about how all of this is impacting what they can and cannot do. 

On top of this, the general public, after seeing the news, is assuming that there is a stop on all evictions.

This email will explain both the Governor’s Executive Order and the CDC Federal Eviction Moratorium.

It is actually easier to understand than it first appears, and we have prepared a Detailed Q & A you can download.

1. NONCOMPLIANCE AND NONRENEWAL NOTICES AND EVICTIONS

Neither the Governor’s Executive Order nor the CDC Federal Eviction Moratorium applies to these types of cases.

The Property Manager can continue as usual serving Notices of Noncompliances and Notices of Nonrenewal, and we are able to file these evictions as normal.

The only issue is that a Tenant may claim they are being nonrenewed BECAUSE they have not paid rent, so you need to be prepared for this being brought up as a defense. Private attorneys and legal aid groups may have success using this defense.

2. NONPAYMENT OF RENT CASES

NONPAYMENT NOTICES (3 or 30 Day Notices) can be served and Nonpayment of Rent evictions can be filed, BUT there are important things to know.

A. If you receive a DECLARATION from the Tenant, as provided by the CDC  Federal Eviction Moratorium, your hands are tied through December 31. You would be violating Federal Law if you filed the Nonpayment of Rent eviction or continued with a current eviction, and there are severe monetary penalties and even jail time potential.

B. If you do not receive a DECLARATION from the Tenant, you can file evictions for Nonpayment of Rent and can continue evictions for Nonpayment of Rent, BUT, the Governor’s Executive Order states that there will be NO FINAL ACTION (Writ of Possession or Final Judgment) until October 1. This could be extended again.

SO WHAT DOES THIS ALL MEAN?

Proceed as normal, and in many counties, the evictions will go through. BUT if the Tenant serves you a DECLARATION or brings up the defense that they are financially adversely impacted by COVID-19, you can expect to have your hands tied:

A. DECLARATION SERVED ON YOU –  You cannot even file the Nonpayment of Rent eviction or must stop the Nonpayment of Rent eviction if already filed.  This will stop everything through December 31.

B. DECLARATION NOT SERVED ON YOU – The Tenant may be able to delay the Final Action of the Nonpayment of Rent eviction to at least October 1. 

QUICK RECAP 

1. If a DECLARATION is served on the Property Manager, everything stops through December 31, 2020 for Nonpayment of Rent cases.

2. Noncompliance and Nonrenewal evictions can be filed and proceed BUT defenses can be raised.

3. If a DECLARATION is not served on the Property Manager, Nonpayment of Rent evictions CAN be filed but NO Writ of Possession until October 1, 2020 if Tenant raises a COVID-19 impact defense.

EACH COUNTY MAY INTERPRET THE ORDERS AS THEY SEE FIT WHICH CAN FURTHER COMPLICATE MATTERS.

Click here to see THE DETAILED Q & A ON THE CDC FEDERAL EVICTION MORATORIUM

Click here to see the CDC FEDERAL EVICTION MORATORIUM
 
Please click here to see the SAMPLE DECLARATION
 
Click here to see the GOVERNOR’S EXECUTIVE ORDER OF JULY 2020
 
Click here to see the GOVERNOR’S EXECUTIVE ORDER OF AUGUST 2020

UNDERSTANDING THE SEPTEMBER 2020 CDC EVICTION MORATORIUM

Note: This “Moratorium” ONLY applies under certain conditions.
On August 8, 2020, by Executive Order, President Trump ordered certain federal agencies to determine whether a nationwide residential Eviction Moratorium was advisable in light of the COVID-19 pandemic.

Less than a month later, there is now a nationwide residential Eviction Moratorium enacted by the Centers for Disease Control (CDC) that will apply to ALL Tenants in ALL residential rental properties, BUT ONLY UNDER CERTAIN CONDITIONS.

Q: Did the CDC impose an Eviction Moratorium?
A: Yes. As of September 4, 2020, the CDC has ordered a halt to certain nonpayment evictions nationwide through December 31, 2020 on public health grounds if the Tenant can produce a proper signed Declaration/Affidavit.

Q: How does the Tenant qualify for the Eviction Moratorium protection?
A: The Tenant will have to deliver to the Property Manager a signed Declaration. The CDC has a Declaration that can be used, but any Declaration with substantially the same wording can be used. It does not need to be identical or called a Declaration so be very careful.

Q: What must the Tenant certify in the Declaration?
A: The Tenant must certify that they:
1. Had a substantial loss of household income or have incurred extraordinary out-of-pocket medical expenses.
2. Are unable to pay full rent.
3. Used best efforts to obtain all available government assistance.
4. Are making best efforts to pay partial rent.
5. Would be homeless or forced to live with others in close quarters if they were evicted.
6. Expect to earn less than $99,000 a year if single or $198,000 if married in 2020.

Q. Does this Eviction Moratorium impact non-CARES Act covered properties?
A. The Eviction Moratorium impacts any and all residential properties, CARES and NON-CARES.

Q. Does the substantial loss of household income or extraordinary out-of-pocket medical expenses related to the Tenant’s certification have to be COVID-19 related?
A. No, there is no specific language in the CDC order requiring this.

Q: If the proper Declaration is submitted to the Property Manager prior to eviction, can an eviction action still be filed?
A: Probably not. The Eviction Moratorium indicates the landlord cannot “evict”, so most likely this applies to all aspects of the eviction process.

Q: If the proper Declaration is submitted to the Property Manager by the Tenant after the eviction action has already been commenced, can the Property Manager still proceed with the eviction action as long as the writ of possession is not executed?
A: No. The Property Manager should not be moving forward with the case, as that could also violate debt collection laws, and obtaining the Final Judgment of Eviction could mean the Tenant was “evicted”, subjecting the Property Manager to criminal and civil penalties.

Q: If the Declaration is submitted to the Property Manager by the Tenant after the eviction action has already been commenced, can the Property Manager still execute the Writ of Possession?
A: The Property Manager is absolutely prohibited from executing the Writ of Possession if the proper Declaration is submitted to the Property Manager.

Q: Is violating the Eviction Moratorium a criminal offense?
A: Yes. Violation of the Eviction Moratorium would potentially subject the Property Manager and/or property management company to criminal penalties of up to a year in jail and fines ranging from $100,000 up to $500,000.

Q: Is the Tenant still obligated to pay rent?
A: Yes, not only is the Tenant still obligated to pay rent, but the Property Manager is not required to waive any rent amounts owed by the Tenant.

Q: Does the Eviction Moratorium apply to evictions unrelated to the nonpayment of rent such as noncompliances and non-renewals?
A: No, the Property Manager would be permitted to evict Tenants who violate lease terms unrelated to rent and also evict holdover Tenants.

Q. The lease is coming to an end or the tenancy is month to month. Can the Property Manager serve notice and evict?
A. The Moratorium does not prohibit this, but the Tenant could potentially argue that the Property Manager is violating the law if the Property Manager was served with the Declaration, and the reason for nonrenewal is because of nonpayment.

Q. What should a Property Manager do if the Tenant presents a Declaration to them?
A. The Property Manager should mark the file or indicate in the software that a Declaration has been received, stop any action such as notice serving and contact their attorney ASAP, being careful to document everything.

Q. Suppose a current eviction for nonpayment of rent is in progress and the Property Manager receives the Declaration?
A. The Property Manager needs to immediately contact their attorney and confirm that contact has been made and received.

Q. Can the Property Manager make any payment arrangements with a Tenant after receiving the Declaration?
A. Yes, but if the Tenant fails to pay per the payment plan, no eviction can be filed.

Q. Is a Property Manager prohibited from speaking to or contacting a Tenant after receiving the Declaration?
A. No. The Property Manager can contact the Tenant, attempt to make payment arrangements or enter into a cash for keys agreement, but cannot threaten or imply that an eviction for nonpayment of rent will be filed or that a current eviction action will be continued.

Q. Can the Property Manager work with the Tenant on rental assistance with the various assistance programs?
A. Yes. Nothing prohibits the Property Manager from doing this, and it is encouraged.

Q. If a Tenant served the Property Manager with the Declaration, how soon would the Tenant be removed once an eviction for nonpayment of rent can be filed after December 31?
A. The Property Manager should expect extreme delays after the eviction for nonpayment of rent is filed after December 31.

Q. Does the Property Manager have to inform the Tenant of the Eviction Moratorium?
A. No disclosure is required.

Q. Will the Eviction Moratorium impact current eviction actions?
A. Yes, if the Tenant has provided the Declaration, the Property Manager must notify the attorney ASAP and the eviction action is put on hold. The case will be held by the attorney.

Q. Can we still serve notices as normal on our nonpaying Tenants?
A. Yes. The Eviction Moratorium only impacts the Property Manager if served with the Declaration by the Tenant. If the Property Manager has been served the Declaration by the Tenant, the Property Manager should not give any notices for nonpayment of Rent.

Q. Can the Property Manager send evictions to the attorney for filing?
A. Yes. As long as the Tenant has not provided the Property Manager with the Declaration, all evictions can be filed as usual.

Q. Does the Tenant have to give the Declaration to the Property Manager, and must it be signed by the Tenant?
A. If the Tenant gives the Declaration to ANYONE connected to the Landlord/Owner or eviction process, this would be enough for notice to have been given. If it is NOT signed by the Tenant, but the Property Manager has confirmed it came from the Tenant, it may be as good as signed.

Q. How important is it to notify the attorney that this Declaration or something looking similar to it has been received by someone in the office or company?
A. Probably the most important thing you can possibly do.

LAW OFFICES OF HEIST, WEISSE & WOLK, P.A.
QUESTIONS? EMAIL US AT INFO@EVICT.COM WWW.EVICT.COM
ALL COVID-19 RELATED INFO, ARTICLES, FORMS, ALERTS AND VIDEOS ARE ON WWW.EVICT.COM CHECK IT OFTEN

“The New Zoom Normal” Virtual Meetings Exposed Online: What You Can Do to Help Protect Member Privacy

The year 2020 pushed us into so many unchartered territories as the coronavirus pandemic forced us to change our daily lives and adapt to virtual technology.  My children, along with children worldwide, were suddenly forced to learn virtually through online platforms such as Zoom.  While I am eager for my kids to return to face-to-face learning, these online platforms are something I’ve been wanting my Association clients to start using for a long time.  The pandemic pushed my clients into adapting to these new platforms and it’s been a change for the better.  In addition to increasing member attendance at Board meetings, it’s allowed me as General Counsel to attend and assist with more Board meetings than ever because my travel time (especially during rush hour traffic for evening meetings) is non-existent.

 

The immediate push into using these platforms did come with some challenges.  When schools and religious organizations started using Zoom in March of this year, they were faced with privacy concerns.  “Zoom bombing” suddenly became an issue, where a hacker would intrude on a meeting and create disturbing and offensive content.  Zoom immediately responded by encouraging everyone to make the meetings private and require a password upon entry.  This has now become the standard practice for all Zoom meetings, including for my Association clients.

 

Unfortunately, an additional privacy issue has developed.  Owners are recording private, members-only Board meetings and posting these videos publically on YouTube.  This creates privacy issues because faces, names, phone numbers and the view of inside of homes are now visible online for all to see.  The participants did not know the meeting was being recorded and they certainly did not know it was going to be posted publically.  While Florida statute allows Owners the right to “videotape” meetings, it was never intended for these meetings to be posted publically online.  In addition to creating right to privacy issues, my Board members are concerned about the impact on their professional lives and their ability to speak freely at these meetings, where they conduct important Board business for the not-for-profit corporation they represent.

 

While we wait for the laws and technology to catch up with these changing times, I encourage my Boards to adopt reasonable rules and regulations related to videotaping meetings.  I highly recommend that pre-registration is required if anyone on the call is not on the Association roster, they should be dropped from the call after a verbal warning.  It should be announced that the participants must advise if they are recording the meeting and must understand they are not permitted to post the meeting publically online.  If the video is posted publically, immediately contact the person who posted and demand that it be removed.  Flag the video and file a formal complaint with YouTube for breach of privacy.  Only first party claims may be made, however as the attorney for the Association, I can bring a claim on behalf of all members.

Mortgage, Rent Assistance Available for Income-Eligible Brevard County Residents Impacted by COVID-19

FUNDS ARE NOW AVAILABLE

Funds are now available to income-eligible residents for mortgage assistance, rental assistance and utility and security deposit assistance through Brevard County’s Housing and Human Services Department.

BREVARD COUNTY, FLORIDA – Funds are now available to income-eligible residents for mortgage assistance, rental assistance and utility and security deposit assistance through Brevard County’s Housing and Human Services Department.

Brevard County’s Board of County Commissioners has allocated up to $4.4 million in federal CARES Act grant funds to assist those financially impacted as a result of the COVID-19 public health emergency.

Those eligible must be a resident of Brevard County; at or below 140 percent of area median income; and able to demonstrate assistance is required as a result of direct impacts from coronavirus.

To qualify, applicants must be able to submit documents supporting income, need and other assistance, including income verification documents such as paychecks, unemployment compensation history, veteran’s check, child support payment history, Aid to Families with Dependent Children/Temporary Assistance for Needy Families, bank statements, rental agreements, mortgage statements, documentation for a utility deposit, and most recent tax return, etc.

Applications for assistance are available online at these locations: www.brevardfl.gov/HumanServices/Announcements, and www.brevardfl.gov (look in the blue box at the top of the page for COVID-19 Financial Assistance Program.) Paper application forms will also be made available at Brevard County libraries and on County buses.

From Space Coast Daily

Why our Associations are Great!

What differentiates a great board from just a good board? Great boards develop, maintain and value their credibility and their integrity. And they continually display, individually and as a group, the following traits:

Great Boards Focus on the Big Picture

It’s the big picture problems that count for great boards, who spend their time continually reviewing and refining their HOA’s big picture plans for the community. To do this effectively, great boards will establish a Mission Statement for their HOA along with a clear policy for all facets of community administration to follow. With both of these in place, a great board will stand back and observe if that policy is being carried out through each step of their HOA’s operations, starting with management, continuing down through the vendors, and finally reaching the community at large.

Let’s consider a board who sets the following policy:

The objective is for the common areas to have continual esthetically pleasing landscape conditions within budgeted figures

Is this a good board policy or a great one? The policy is a broad statement that seeks a general outcome, an “esthetically pleasing landscape”, and does not concern itself with particular details, such as the type of flowers planted, number of planting beds, etc. At the same time, the policy gives management enough direction to carry out the policy administratively and financially (“within budgeted figures”). This policy therefore covers the big picture goal of the HOA’s landscaping, and is the policy of a great board of directors.

Great Boards Hold Productive Meetings

Great boards hold efficient, productive meetings while still allowing homeowners to air opinions and board members to discuss, debate and take action on various issues. There are five main elements to a successful board meeting, and great boards will do them all. In a great board meeting, board members…

  • Start off organized and stick to an agenda
  • Keep their priorities in order
  • Assign responsibility for every action decided on
  • Focus on results
  • Control homeowner input

But board members can’t just have a successful meeting; it takes a little preparation. Namely, great boards always read relevant materials before the meeting.

When a great board member comes to a meeting, he or she will have read the agenda and board packet beforehand, that way they’ll be ready to make decisions based on solid information. These board members know that time is valuable and do their best to not waste their own time or their fellow board members/ and staff’s. They know being prepared develops the community’s trust in them as leaders and gives them the ability to make decisions on the community’s behalf in a timely manner.  Any questions these prepared board members have were answered before the meeting began by staff, vendors, or another board member so the HOA’s business can be conducted efficiently and productively.

Great Boards Protect Against Liabilities

Great boards know that liabilities are a risk to the HOA and to themselves, and always face that risk head-on by dealing with potential and evident liabilities quickly and surely, according to their set policy. Great boards understand, and never shy away from, risk management. They obtain information and direction from insurance, legal and management experts to guide them on the safest path, which starts with a heads-up approach to running the HOA.

This means that great boards…

Keep Rogue Board Members in Check

Great boards don’t allow a single board member to put the entire community in jeopardy by making racial, ethnic or sexual comments at a meeting. If a board member says or does something inappropriate, a great board member will control the situation by addressing the improper behavior. Failing to reign in these types of situations can be a serious liability for the board and the community.

Hire Insure Vendors and Contractors

Great boards know they have a duty and responsibility to the community not only to hire a professional (and not, say, a brother-in-law who once did a drywall project in his house), but also to make sure they are protecting the community from liability by utilizing only licensed and insured contractors.

Great Boards Remember Their Fiduciary Duty

A fiduciary is a person who occupies a position of special trust and confidence, and board members are fiduciaries to their HOA membership. Great board members always keep this in mind when making decisions for the HOA, knowing that their decisions should work towards the community as a whole, not just their neighbors or friends.

To make decisions as fiduciaries, boards must base their decision on logic and reason, not on emotion or fear, giving the board and the community credibility and integrity for the long-term as they occupy that place of special trust and confidence.

An HOA board is a deliberative body that makes decisions based on solid input.  That solid input should include, but not be limited to, their own experience, facts, data, standard of care and standard of the industry, precedents set before them, and expert opinion. Using these information gathering tools, great boards make informed decisions that are best for the community, even when those decisions may be unpopular.

Great Boards Acknowledge Staff and Volunteers

Publicly and privately, in the newsletter or on the website, great boards continually acknowledge all contributors to the administration of the community, including other board members, committee members, management staff, etc. Cheering on or acknowledging fellow board members and volunteers creates a positive, successful image for the HOA. People like to be a part of something they find effective and worthwhile, meaning this positive image will help encourage homeowners to get involved in HOA initiatives, and foster a friendlier environment for the staff already on board.

In other words, great boards know they can’t do it alone, and embrace all the help that comes their way.

Great Boards Know They Get What They Pay For

Great boards suffer no illusions. They know that if they receive three bids for a vending contract and one of the three bids is substantially lower than the two, they should thoroughly investigate the reason why, because something could be amiss.  Maybe the contractor read the Request for Proposal wrong, or maybe he or she low-balled the bid.

And if a board accepts the low bid despite the contractor’s shortcomings, a great board will know there’s a cost to managing that low bid. Great boards realized that accepting the lowest of qualified bidders may mean a cost to themselves, whether it be it in their own time, staff time or having to have another contractor come in and finish the job or clean up the mess.

Whatever choice a great board makes, they’ll know they get what they paid for.

Great Boards Speak with One Voice

Boards are like a family: different (and sometimes conflicting) personalities thrown together to try to accomplish one main goal: help the community thrive. What sets great boards apart from the pack is that they know there will be disagreements, they know they don’t each think alike; yet, once the votes are cast they move forward together—speaking with one voice to the membership.

This is crucial for any board, but particularly those who have seriously disgruntled folks in their midst. Any chink in the armor of the board will be exploited by those with agendas that are not within the current board’s policies, goals and objectives.  Great boards stick together and show a united front to their members, creating credibility and integrity.

Great Boards Put Aside Personal Agendas

A great board member will release his or her personal agenda, even if it’s what got him or her elected in the first place, to become a functioning and contributing member of the board. Oftentimes board members are elected for promises they may or may not be able make, such as lowering the dues dramatically or switching management companies overnight. After the election, that board member often finds out the platform, or agenda, on which they ran is based upon misinformation, or maybe just can’t be done in the way he or she envisioned. A great board member realizes quickly things were not as he or she thought and will put aside their agenda for the good of the community.

This means that when new members are added to the board, great boards know how to handle personal, contrary agendas. The great board brings the new board members up to speed through corporate memory, helping them recognize what Vision Statement, Mission Statement and Policy has been set in place. This gives the new board member a foothold on established process so they may embrace the big picture (which great boards focus on) rather than their personal agendas.

Great Boards are Proactive with Information

Great boards seek out information and education on all aspects of community administration and maintenance as it applies to their community. Sometimes, it’s information they don’t want to hear, such as learning that the most recent legislation calls for all boards to hold their meetings on Tuesdays when the moon is full and for all members to receive written (engraved) invitations to attend.  But great board members listen anyway because they know as a board member it is part of their duty to always gather information. Sometimes they learn valuable information on ways to run their meetings, paint the decks or collect dues in a more efficient manner.

Whether by reading websites and industry publications or by attending workshops and forums and networking with other board members,  great boards know they do their jobs best by being informed, and they strive to stay that way.

Great Boards Communicate Positively and Regularly with Members

Much of the job as a board member entails having to tell members “No,” as the board is trusted with enforcing the CC&Rs for the continuity of the community. “No parking in that spot,” “No leaving pool towels on the balcony,” “No dogs without a leash”. Great boards know there are ways to say no, but in a positive fashion.

For example: “No walking dogs in the park from 8 am to 12 noon,” can be couched as “Dog walkers are encouraged to take their pets to the park from 12 noon to 6 pm for sunshine and fresh air seven days a week.”  Or, “No parking on Snowy Palms Dr. during Easter Break,” can be turned in to “Owners are encouraged to park their vehicles on Warm Alaska Dr. during the Easter Break so as to create less congestion for all residents entering the community.” .

Great boards also know the importance of regular (monthly or bi-monthly), upbeat, professional-looking newsletters, updated websites and other forms of communication.

These forms of communication create a sense of openness and allow for the outflow of positive communication about the community. They also create board credibility, and they do so by fostering a positive attitude while still giving the membership needed information and reminders.  Because people want to be a part of something successful, upbeat and positive, a community with this image is one that fosters volunteerism.

Great Boards Have a Sense of Humor

Great boards see the all the problems and challenges as something with which to be dealt with a healthy sense of reality and a big dose of humor. Why? Great boards know three things:

  • It’s not IBM, it’s an HOA.
  • The smaller the stakes, the pettier the politics.
  • It’s not personal.

Great boards have a sense of humor because they maintain perspective, giving much of what we do a very humorous aspect.

Great Boards Value Integrity and Credibility Above All Else

Integrity and credibility is what we all look for and respect in friends, family, school, church, work, business and what we want to see in board members and in any board as a whole—boards that don’t get mired in minor details, that are consistent in their decisions, assist new members in adjusting to their roles and create a polite atmosphere in which to volunteer, to be serious but not take themselves too seriously, and demonstrate they are mature and responsible in their actions. These board members are Credible. They have Integrity. And they are the best of the best. They are what make great boards.

Is Your Board Great?

All boards are potentially great boards. By determining which of the top traits can be incorporated in to your board, you can achieve outstanding service for the community and a satisfying experience for each board member.   Taking your board from good to great takes true vision, and the will to serve yourselves and the community at the highest level.


Adapted from an article by Julie Adamen, president of Adamen Inc.(link is external), a consulting and placement firm specializing in the community management industry.

Stay prepared for severe weather

We are monitoring Tropical Storm Isaias and are preparing to respond, should our customers be affected. While the path of the storm remains uncertain, it appears Florida may experience severe weather this weekend and customers could have power outages.

While we are taking numerous measures to limit the spread of the virus and our response will look different, we assure you we are ready to respond and will work around the clock to restore power for every single customer.

We urge you to review your emergency plans and make final preparations now. Take a moment now to ensure you stay connected with us throughout any storm that may come our way and don’t miss any important updates.

VISIT STORM CENTER
Get Outage Alerts
Choose to receive updates via text message directly to your mobile phone.
TEXT “JOIN” TO 69375
Make Safety a Priority
Download the storm guide and learn how to safely operate a generator.
VIEW TIPS »
Download the FPL Mobile App
Download the FPL Mobile App
Get instant, secure access to your account. Text APP to 69375.
GET IT NOW »

Is it in the best interest of Associations to attempt to solicit all officer vacancy seats?

After having a conversation with one of our attorney affiliates. Solutions would like to share a followup concerning 718.1124. The question arose whether it was in the best interest of Associations to attempt to solicit all officer vacancy seats. 

(Rachel DeCamp) I believe it is in the best interest of all associations to fill all 5 positions whenever possible or if it is a small association or an association with limited volunteer activity, the current Board should show some activity and/or interest to fill any vacancies. It’s not all about having enough for quorum. It is about having an amount to prevent an association from any petitions or at least showing the BOD has initiated the fiduciary and statutory responsibility to do so. 

Statute Overview:

718.1124 Failure to fill vacancies on board of administration sufficient to constitute a quorum; appointment of receiver upon petition of unit owner.

(1) If an association fails to fill vacancies on the board of administration sufficient to constitute a quorum in accordance with the bylaws, any unit owner may give notice of his or her intent to apply to the circuit court within whose jurisdiction the condominium lies for the appointment of a receiver to manage the affairs of the association. The form of the notice shall be as follows:

Here is the Attorney response:

Hi, Rachel.


I’d say you’re both kind of right.  LOL  The BOD has a fiduciary duty to enforce the covenants.  If the docs say they are to have 5 BOD members, then they have an obligation to have 5 BOD members.  If they find themselves with a vacancy, then they need to do everything they can to find a volunteer to be appointed.  In my opinion, they should even send a letter to all owners asking if anyone is interested.  So I agree with  that regard.  Having said that, I agree with your interpretation of the law.  Statute says any owner can file an action in court seeking an appointed receiver to run the community IF there are not enough members on the BOD to constitute a quorum.  Not the case here; as such, there is no potential action for receivership.  As long as they have made a good faith effort at filling that seat and have been unable to (and I’d advise they document in their O.R. what those efforts entailed), then they are fine running with 4 until the next election and, no, their actions are not voidable because they had only 4.  In fact, if they’ve tried to find a volunteer and can’t, then not only is it “ok” to operate that way, it’s the only option they have.  They’ll still need a quorum of 5 (3 total) to conduct business though. 

SM ESQ. 

REMINDER! WEBINAR: Safeguarding Community Residents

Attention All board members. This Webinar may be for you and your association. Here’s a reminder about navigating and Shifting Landscape Uncertainties.
 Sincerely, Your Solutions Management Family
Thank you for registering for Becker’s “Safeguarding Community Residents” webinar scheduled to take place TOMORROW, July 23 at 2 p.m. EST on Zoom.
Due to limited capacity, please arrive a few minutes early to this webinar to secure your seat. If you are unable to attend the live webinar, the video recording will be sent to all registrants 1-2 days after the live session. Past webinars are also always available on Becker’s YouTube Channel within a few days of the live event.

Thank you and we look forward to seeing you all there!

We Now Know the Laws That Will Affect Community Associations

 

With the legislative session closed and the deadline expired for Governor DeSantis to veto Florida House or Senate bills, we now know the laws that will affect community associations. Below is a summary of some of these new laws impacting Florida community associations. Our forthcoming Legislative Guidebook will contain a more in-depth analysis along with some operational tips for your community to employ.

  1. Senate Bill 476 – Law Enforcement Vehicles. Applies to condominiums, cooperatives and homeowners’ associations by amending Sections 718.129, 719.131, and 720.318, Florida Statutes, to allow an owner, tenant, or guest to park his or her assigned law enforcement vehicle in an area where the owner, tenant, or guest may otherwise park. If your governing documents restrict commercial vehicles, that restriction may not be applied to the parking of a law enforcement vehicle. Rather, the law enforcement vehicle must be treated as the owner’s, tenant’s, or guest’s personal vehicle.
  2. Senate Bill 1084 – Emotional Support Animals.  Applies to condominium, cooperatives and homeowners’ association. The changes are quite lengthy and have been discussed in previous CALL Alerts. The new law allows a housing provider, such as a community association, to request certain written documentation prepared by a health care practitioner in a format prescribed in rule by the Department of Health. The practitioner or provider of the supporting information must have personal knowledge of the person’s disability and must be acting within the scope of his or her practice. If a person falsifies information or written documentation or knowingly provides fraudulent information to obtain an emotional support animal, they can be charged with a misdemeanor of the second degree.
  3. House Bill 469—Subscribing Witnesses for Leases. The new law provides that witnesses are no longer required for a lease of real property or any instrument pertaining to a lease of real property by amending Section 689.01, Florida Statutes, to eliminate the requirement that two subscribing witnesses be present when the lessor, or lessor’s lawfully authorized agent, signs a lease with a term of more than one year.

Senate Bill 1362 – Rental Agreements upon Foreclosure. The law was enacted as of July 1, 2020, but the provisions only take effect upon the repeal of the federal Protecting Tenants at Foreclosure Act (PTFA). This amendment is intended to clarify the preemption of Section 83.561 by repealing that law and enacting Section 83.5615, which similar to the federal PTFA, requires that a tenant receive 90 day notice to vacate in the case of any foreclosure on a federally-related mortgage loan. Now under the state law, the immediate successor in interest at foreclosure must: (a) provide bona fide tenants with 90 days’ notice prior to eviction; and, (b) allow bona fide tenants with leases to occupy property until the end of the lease term, except the lease can be terminated on 90 days’ notice if the unit is sold to a purchaser who will occupy the property.

Senate Bill 140—Fireworks/HOA Rules. Creates Section 791.08, Florida Statutes, which prohibits a homeowners’ association from promulgating rules that abrogate a  homeowner’s right to use fireworks on Independence Day, July 4; New Year’s Eve, December 31; and New Year’s Day, January 1. The law does not supersede any prohibition against the use of fireworks contained within a recorded declaration, but an HOA board may not promulgate rules that prohibit a homeowner’s right to use fireworks during one of the three designated holidays.

  1. Senate Bill 374 – Housing Discrimination. Creates Section 712.05, Florida Statutes, which declares void and unenforceable all “discriminatory restrictions” contained in any recorded title transaction. Defines a “discriminatory restriction” as a provision which restricts the ownership, occupancy, or use of any real property by any natural person on the basis of a characteristic that has been held, or is held after the effective date of the act, by the United States Supreme Court or the Florida Supreme Court to be protected against discrimination under the Fourteenth Amendment to the United States Constitution or under Section 2, Art. I of the State Constitution, including race, color, national origin, religion, gender, or physical disability. Upon request of a parcel owner, a discriminatory restriction appearing in a covenant or restriction affecting the parcel may be removed from the covenant or restriction by an amendment approved by a majority vote of the board of directors of the respective property owners’ association or an owners’ association in which all owners may voluntarily join, notwithstanding any other requirements for approval of an amendment of the covenant or restriction. Amends Section 760.34, Florida Statutes, to allow a person alleging housing discrimination to file a civil action under the Florida Fair Housing Act (“FFHA”) without first having to “exhaust” his or her administrative remedies (i.e. filing and waiting for the resolution of a housing discrimination complaint with the Florida Commission on Human Relations)
  2. House Bill 529 – Insurance Guaranty.  Amends Section 631.57, Florida Statutes, to increase the amount of coverage for property insurance claims by a condominium, cooperative or homeowners’ association under the Florida Insurance Guaranty Association (FIGA) from $100,000 to $200,000 multiplied by the number of units.

House Bill 255 – Florida Commission on Human Relations.  The bill amends several statutes pertaining to the Florida Commission on Human Relations (“FCHR”) which administers Florida’s civil rights and fair housing laws and among other things is empowered to investigate and hold hearings concerning complaints of discrimination. Most significantly to associations operating as 55+ communities, the amendment to Section 760.29, Florida Statutes, deletes the registration requirements for claiming the “Housing for Older Persons” exemption and eliminates related forms, fees, and fines. Under what is known as the 80/20 Rule, the State allows communities an exemption from the Fair Housing Act if certain criteria is met including: (1) that at least 80% of the units must be occupied by at least one resident over the age of 55; (2) the community publish and adhere to policies and procedures demonstrating an intent to provide housing for persons 55 years of age or older; and (3) the association engage in appropriate age verification procedures that includes a community census from time to time. While the prior version of the law also required associations to submit a registration letter to the FCHR once every two years, with a fine of up to $500 for failing to do so, the amendment removes this obligation.

Wishing you continued health and safety in these challenging times.