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Florida Community Association Law
A legal blog addressing common questions and issues that community association owners, board members, and others face. The goal is to provide information, services, and an online community to enhance the experience of association living in Florida.
Tuesday, May 30, 2017
2017 Legislative Update
Wednesday, August 3, 2016
When Can the Association Board Have a “Closed-Door” Executive Session?
I
get this question more than I like. The association board wants to have a
meeting and either not notify the owners about it or keep owners from attending
(i.e. “closed-door”). Most of the time it comes up when a board has a
controversial or unpopular decision to make and, frankly, does not want to
discuss it in front of the ownership. Unfortunately, neither the Condominium
Act nor the Homeowners Association Act has a provision for closed-door meetings
in these situations.
One
of the fundamental concepts of association living is that everything is done in
the full view of the ownership. Almost every decision and document, for better
or worse, needs to be open to scrutiny from the ownership. After all, it is the
owners’ money and property that the board decisions are impacting!
There
are two exceptions to the open meeting policy. The first is when the board is
discussing personnel (a/k/a employee) issues. See Fla. Stat. §
718.112(2)(c)3.b. In this situation, the legislature decided the privacy rights
of a worker trump the owners’ rights to transparency from the association. This
section covers discussions regarding in house employees. However, this does not
include decisions regarding the management company contract. The concept gets
gray when dealing with managers that work for a management company but
basically function as an employee of the association. In those cases the
language in the management company contact could provide some insight. If in
doubt contact your legal counsel for an opinion.
The
second exception is a meeting to discuss proposed or pending litigation where
the attorney is present. See Fla. Stat. § 718.112(2)(c)3.a. Basically, this is
meeting covered by the “attorney-client privilege.” There are two prongs to
this situation. First, there has to be litigation proposed or present. The
board cannot have a closed meeting to get a legal opinion from legal counsel a
topic for which litigation is not proposed or pending. Whether litigation is
pending or not is self-explanatory but when litigation is “proposed” can be a
grey area. If this is a question, one of the directors should reach out to the
attorney individually and ask whether a conversation on a given topic would
qualify under this statute for a closed-door meeting. Second, the attorney for
the association must be present. The board cannot have an “attorney-client”
meeting, with out the attorney present (in person or by phone).
So
what can the board do to mitigate the awkwardness of these meetings? First, as
long as there isn’t a quorum of directors present, directors can discuss
association business. The president can call each director individually to get
an idea of where they stand on an issue. This gives the directors the ability
to flush out some of their differences behind the scenes. But this does not
negate the requirement that the issue the board is trying to avoid must be
brought up at an open meeting where owners can comment to the directors and the
ultimate decision is made in the open.
Friday, July 29, 2016
Association Key Access to Units - What Are the Rules?
Can
a condominium association require that unit owners provide the association with
a key to access a unit? The short answer to the question is yes.
Most
associations and owners are aware of Fla.
Stat. § 718.111(5)(a) that states “The association has the irrevocable
right of access to each unit during reasonable hours, when necessary for the
maintenance, repair or replacement of any common elements or any portion of a
unit to be maintained by the association pursuant to the declaration or as
necessary to prevent damage to the common elements or to a unit or units.”
In
the case of Harbour Royale Condominium Association vs. George Mitchell,
Case No. 13-02-8797, (Brevard County, September 17th 2013), the
Association established a rule requiring owners to deliver a key to their unit
to the association. Specifically, their rule stated that “It is required that
keys to the unit be provided to the Association Office. They are to be used for
emergency purposes and for periodic spray controls. The Association has the
right to authorize entrance to the owner's unit by any means necessary in case
of an emergency at the expense of the owner.”
Despite
the association’s rule, one particular owner refused to provide a key on the
grounds that he previously provided a key to the association and the keys were
misplaced. He was also afraid that the association would make copies and give
the copies to unauthorized maintenance personnel.
The
Arbitrator ordered the owner to permanently provide the Association with a
key and stated that ““The right of access granted by [Fla. Stat. § 718.1255] is
broad enough to support a requirement that unit owners must provide key access
to their unit to the Association.” The Arbitrator went on to say “Even if the
Association lost the copy of the key [the owner] allegedly gave to the
Association, [the owner’s] remedy is not to refuse to provide another copy of
the key to the Association.”
If
your community is interested in implementing a policy requiring owners to
deliver keys or key access codes to the association, we recommend the
following:
- The association must adopt a
formal rule implementing the new key access policy.
- The rule should describe the
requirement to deliver keys or codes to the association, how those keys
and codes will be handled and safeguarded, the instances in which those
keys and codes will be used for access to the unit, etc.
- Give written notice to all
the owners that the new policy is in place.
As
always, check your particular association’s governing documents for specific
restrictions regarding entry to units, adoption of rules, etc.
If
you have any questions on this topic or any other Homeowner or Condo
Association issues, please contact
me and I will be happy to help.
Tuesday, July 26, 2016
Five Key Points for New Association Board Members
Below
are five key points that will prove invaluable for both potential board members
and for those already serving their term.
Becoming
elected or appointed to serve on a Homeowner’s Association or Condominium
Association’s board of directors can be an exciting, rewarding and enriching
experience. It can be an opportunity to give back and contribute to the success
and future of a community. However you should also realize the responsibilities
that come with the posting, especially with some of the larger associations
where you will be at the helm of a potentially multi-million dollar company.
You could be accountable to several hundred homeowners, be responsible for
large budgets, and you may oversee the complexities that come along with
high-rise and/or multi-structure complexes.
1.
Know What You Don’t Know.
You
are not required to have all the necessary information memorized. The Florida
Statutes are constantly being amended and your own association rules and
regulations will be ever evolving. While you are not expected to know
everything, you are expected to engage the right people to advise you. The most
effective way to stay current and meticulously proficient is to engage the
appropriate experts – a specialized attorney, a qualified CPA, an efficient
manager, and a reputable insurance agent will ensure you have access to the
information and advice you need.
2.
Be Consistent and Abide by the Documents.
A
director on an association board must be consistent and enforce the
rules/restrictions as written. Admittedly, this is tough when the restrictions
for the community seem obsolete or misguided. Keep in mind though that as a
director, the restrictions are provided TO you to enforce. If you feel any part
of the restrictions no longer best serves the community, do not just ignore the
issue or pick and choose what you’re going to follow and ignore. If the
association does not want to follow a rule or restriction, then meet with your
attorney to figure out the process and language to change it. Otherwise,
consistently follow the rules as written.
3.
Be Transparent.
An
obligation of being a director is to promote transparency within the
association. The owners have a right to information and you’re making decisions
affecting their finances and property rights. Therefore, they have a right to
know what’s going on with the association. Ways to promote transparency
include ensuring the owners are receiving the correct notices, having regularly
scheduled board meetings, and making official records and financial statements
available. If your association does not have a user friendly, updated website
then this is great way to improve association/owner communication.
4.
Have a Plan for the Future.
There
are two reasons to have future plans for the Association: 1) it defines what
you want to accomplish, and 2) it makes for better meetings. First, you
likely ran for the board to have an impact on the community. However, how can
you have an impact if you don’t have a plan for what that impact is going to
be? Anytime you can define discrete goals you’re more likely to accomplish
them. Second, I have found that associations that don’t have a plan for the
future tend to focus on the past. This means discussions over past events
dominate the meetings. If you give your owners an outlook for the future and
define the priorities of the community over the next 1, 3, & 5 years, you
will be pleasantly surprised how much support you get from the owners, plus how
much more efficiently your meetings will run.
5.
Understand the Financials.
Association
financials can be extremely complex. Although you don’t need to be able to
translate every single document, we do recommend you form a basic understanding
of the balance sheet, the income statement, the annual budget and the accounts
receivable. You should also have a clear picture of the reserves – are you
adequately funded? If you can understand these documents you’ll get a baseline
picture of the financial health of your community. Then, engage a specialized
community association accountant or CPA who can answer any questions that you
might have.
If
you do those 5 things you will be a key asset to your association, improve your
community, and also likely enjoy your experience as a director.
For
more information on this issue or other association questions contact bburg@HSMcLaw.com.
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