Monday, March 12, 2018

When construction occurs next door, your Board needs to get involved early!

It's likely that at some point during your community's lifespan, new construction will occur nearby and the impact on your residents will vary both short and long-term depending on the steps your Board takes early in the process. Sometimes new construction is welcomed enthusiastically by the members of an established community but more often than not, nearby construction strikes dread in the hearts and minds of many residents and board members who fear noise, disruption, debris, impaired views and incidental damage.

Communities facing the prospect of new construction next door should not go "on the attack" but should engage experienced counsel to help them navigate the construction process, set realistic expectations for their residents, reach agreement on protective measures to be provided by the contractor/developer, and receive compensation where appropriate.  If handled properly, the new construction can do much to enhance your community's value. If mishandled, you could wind up with new construction that encroaches on your land, damages your landscaping and exterior amenities, adversely impacts drainage, and, in severe cases, causes structural cracks in your buildings.

Naturally, the individuals or corporate entity driving the new construction want your community's support to sail through the governmental approval process. Boards who feel that their concerns and issues have been properly addressed by the developer next door will be much more likely to provide that support.

There are many factors to discuss and consider with the developer including the intensity of the proposed use, traffic, compatibility issues, construction management, easement agreements, rezoning, and other material issues.  Municipal Land Developer Codes usually require public participation so starting a dialogue early in the process affords your Board with an opportunity for your community and the developer to speak with a unified voice and to address major issues and concerns before being heard in a public hearing.  The developer will certainly want to address your concerns in private rather than face them at a public hearing.

Some common issues that should be addressed include:

  • Debris
  • Nuisance
  • Structural impact
  • Encroachments (both on their side and yours)
  • View Impairment
  • Buffering and noise mitigation measures
  • Trademark Infringement (depending on the name of the new community, shopping center, etc.)
  • Security
These kinds of negotiations may take six months to well over a year and will include your counsel attending and speaking at multiple Board meetings, Developer Town Halls, Municipal Public Hearings, researching City Zoning and Land Use, reviewing Mas6ter Plan Design guidelines, clarifying construction issues/timelines and negotiating the design to take into account view-lines, setbacks, traffic, loading, etc.

If you serve on an association board, you well know that directors are sometimes held responsible by some community members for issues completely outside your control. Don't let neighboring construction become another boiling point in your community.

If you currently have construction proposed or underway near your community and you wish to learn how to best protect your community's rights, please email me at or call 954-364-6031.

Monday, February 12, 2018

Getting A Mulligan (Do-Over) for Your Board in 2018

Whether we call them mistakes, oversights, slip-ups or boo boos, we all make them including volunteer board members who are often hamstrung by both operational and time constraints.

The new year provides an optimal opportunity to correct items from 2017 or even earlier.  The law allows a corporation which has taken authorized actions but which were done in a procedurally incorrect manner to ratify those actions by approving them again, but this time following proper procedure.

Have any of the following occurred in your community?

1.    You made alterations to the common elements or association property but failed to obtain the requisite membership approval.

2.    You did not hold your annual meeting on the date specified in the documents and a member called you out on it.

3.    You had to discard several election ballots because you did not have voting certificates on file for those units.

4.    You were challenged when you attempted to enforce a rule or restriction because a prior board failed to enforce or failed to properly adopt that same rule or restriction.

5.    You took a Board action (filled a vacant seat, signed a contract, fired an association employee, levied a special assessment or adopted a budget, etc.) outside the scope of a duly noticed Board meeting and vote.

6.    Your members passed an amendment and you failed to record it or an amendment was prepared and never presented to the membership for a vote.

Here are the solutions to the foregoing problems:

1.    We can prepare and pass a membership vote which would allow your members to approve of and ratify all prior changes, additions and modifications made by the Association to the Common Elements and Association property or any other action that required a membership vote which was not taken.

2.    We can amend your documents to give your Board more flexibility when setting the date and time for the annual members' meeting and election so you do not risk a technical violation in the future.

3.    We can amend your documents to eliminate the requirement for a voting certificate for husband and wife and other co-owners of units other than units owned by corporations or business entities.  Doing so will eliminate most of the confusion and time-consuming fuss at your meeting to determine whether or not the outer envelopes were properly signed by the voting certificate holder.  Along those lines, implementing online voting will also eliminate these outer envelope judgment calls at your election.

4.    Just because a prior board has not strictly and uniformly enforced certain provisions of your governing documents does not mean your board is forever prohibited from doing so.  We can undertake a process known as republication which will allow you to breathe new life into those unenforceable restrictions and once again allow you to successfully enforce them.

5.    Prior unauthorized or procedurally improper actions require a discussion regarding the nature of those actions and preparation of the necessary materials to ratify same.

6.    If the membership vote was within a relatively recent period of time, we can proceed with recording that amendment or amendments; if not we may need to start the process over again. If you have been sitting on an amendment which was prepared but never voted upon, depending on the age of the amendment, we may need to review and revise that language.

This list is not comprehensive.  There may be other items where a transition in management or in the composition of the Board may have resulted in items falling through the cracks. If you have questions about how to correct any of these problems in your community, you can email me at or by phone at .1-844-CAREBP1.

Monday, February 5, 2018

Improve Your Members' Chances of Casting a Successful Election Ballot

Every year, I attend many of my clients' annual meetings and elections and it is always disappointing when some members' election ballots must be discarded due to avoidable errors.

For Florida condominiums and HOAs who have adopted a "condominium style" election process, the election protocol that was implemented to discourage voter fraud can also be overly complicated for some members to follow.  The goal in any election is to facilitate the greatest voter participation while maintaining the integrity of the voting process.

Here are some ways you can educate your members on how to cast their election ballots properly:

1.    If your association is required under your documents to use voting certificates when a unit is owned by more than one person or is owned by a corporation or other business entity, make sure you have a voting certificate on file for each unit impacted by this requirement and, where possible, amend your documents so that units owned by more than one person or by husband and wife are exempt from a requirement that is better applied to only units owned by entities and trustees;

2.    If you have out-of-state or international owners, consider hand delivering their voting package before they leave town or fed-ex the materials to them so they have time to receive and return their ballots.  Getting your members, particularly your non-resident members, to agree to receive notice by electronic transmission will reduce the problems and costs associated with physical mailings;

3.    Members need to understand that the outer envelope must identify the name of the unit owner, the unit # and be signed by the member or the voting certificate holder.  Outer envelopes that cannot be validated by confirming the foregoing information are subject to being discarded;

4.    The inner ballot envelopes should only contain the ballot and not other papers such as a voting certificate or a proxy.  The inner ballot envelope should not contain any markings which would identify the individual who cast that ballot;

5.    Members can vote for fewer than the permitted number of candidates but not more than the permitted number of candidates.  Ballots which are cast for too many candidate will be discarded;

6.    Offer online voting as an option for your election.  When election votes are cast online, the judgement calls which come into question pertaining to outer and inner envelopes do not apply.  In addition, in many online voting systems, a member may not cast a vote for more than the permitted number of candidates; and

7.    Members should hand deliver or mail back their election ballots. Preferably, the owner will personally place his or her election ballot into a locked ballot box to ensure delivery.

In a Florida condominium, an election of directors can proceed with as few as 20% of the eligible voters casting a ballot; that is a very small percentage of members deciding the composition of a Board of Directors which will make important and monetarily significant decisions for the coming year(s). If you deduct a number of ballots from that already small number due to technical flaws or make it impossible for out of state voters to have time to return their ballots, the chance of having the election results truly mirror the membership's desires

It is incumbent upon every community association member to understand the steps that must be taken to ensure his or her vote counts and the best boards understand that an informed electorate is integral to the community's overall success.

What impediments to casting a successful ballot have you encountered in your community? Let me know.

Friday, January 5, 2018

New Year's Resolutions for Your Board

Historians believe that the ancient Babylonians were the first people to make New Year's resolutions approximately 4,000 years ago. During a religious festival known as Akitu which lasted for a lengthy 12 days, the Babylonians crowned a new king or reaffirmed their loyalty to the reigning king. They also made promises (precursors to modern day resolutions) to their gods regarding the repayment of their debts and believed that if they kept these promises, the gods would bestow favors upon them but if they did not, doom would follow.

We are in the midst of election season for most community associations.  Either the members are deciding to reaffirm their support for an existing board or they have decided to elect a new board.  Particularly at this time of year, many sitting boards find themselves unaware of where they truly stand with their members including whether or not the members believe that the board has kept its promises or abandoned same.  It's best not to wait until year's end to gauge how your board's decisions and priorities are being viewed by the members who elected you.

Here then are some resolutions your board might want to consider for 2018:

1.    Allow time at every Board meeting for a good and welfare discussion to allow those members present to "vent".  Many times, it will be the same malcontents, but, occasionally, you will hear from members with concerns you didn't expect.  I can hear the groans now from some of you regarding having additional time at meetings but you will find that the more frequent your meetings, the fewer times those meetings devolve into chaos.  Some "troublemakers" may not be troublemakers at all but rather are simply people who are looking to be heard; the fewer opportunities they have to express themselves typically results in a blow-up when the rare meeting does occur.

2.    If your meetings have never been well-run, decide to handle them differently in 2018.  If you have someone who constantly interrupts the meeting and will not listen to reason, begin videotaping your meetings, as many people will behave differently if they know their conduct is being preserved for posterity (or as evidence).  If the disruptive people are truly threatening, hire an off-duty police officer to maintain order. Also, consider adopting reasonable rules regarding participation at meetings before you need to enforce them.

3.    If your community is professionally managed, re-read your management agreement to further your understanding of what your manager can and should be doing. Board members should be policy makers, not day to day managers.  For items on which neither the manager nor the Board has the requisite expertise, consult with experts such as your attorney, accountant, engineer, etc.

4.    Stop hiring anyone based solely on price. First of all, if it seems too good to be true, it usually is. More importantly, remember that there are often other factors that impact price and, most importantly, the value of the services you are receiving.  It is easy for boards to get duped by a low price tag but the true yardstick should be the quality of service your Board and members receive for their assessment dollars.

5.    Attend a Division-approved class to get educated and share and hear best practices with leaders of other communities.  Even if you do not need to be certified to serve on your Board in 2018 because you've previously been certified, attending at least one class each year helps you be a better Board member.

6.    Adopt policies that take advantage of available technologies to streamline your association operations, as well as a Code of Conduct for your Board. Some of the strife related to board member squabbles occurs because there are typically no set boundaries and guidelines as to what each board member should be doing.

It is inevitable that you cannot please everyone.  The greatest leaders in history had their detractors.  What you can control is how you approach the role of serving on the Board (please see my emphasis on the word "serving"), how you and your fellow Board members communicate and work together and how you set and relentlessly and efficiently pursue the best interests of the community you serve.

Monday, December 4, 2017

In Defense of HOAs

HOAs certainly have their share of detractors.  Many HOAs operate a community of detached, single family homes which begs the question:  it's my house; it's my yard; other than the local building code, why should my HOA be able to restrict what I can do with them?  Does it really matter how I maintain my yard? Shouldn't the choice of exterior paint color be left up to me rather than the HOA board or an architectural control committee?  Shouldn't I be able to park whatever vehicle I want and park it wherever I want on my lot?  The answer to those questions depends on one's expectations and, unfortunately, sometimes people who prefer few or no restrictions find themselves living in communities with extensive rules and regulations.

While some people are quick to criticize HOAs and even call for the dismantling of their regulatory framework, there are significant benefits that a mandatory homeowners' association can provide.

In my hometown of Plantation, Florida, an ongoing controversy exists in terms of a holiday light display on a residential cul de sac which is not part of a mandatory community association. When I first visited the attraction, I marveled at the grand scale of the display: a large Ferris wheel in the middle of the lawn with adorable teddy bear passengers, an outdoor movie screen playing holiday classics, thousands upon thousands of lights and law decorations and masses of people milling around and gawking like me.  My second thought was "I really would not want to live on this street."

This nationally recognized holiday display takes place on an otherwise quiet cul de sac with fewer than a dozen homes and only one street that provides access to the residents and their guests and visitors.  The push and pull between the owners who host the display and their neighbors has, not surprisingly, played out in the media.  Several of the neighbors have been vociferous about the negative impact their neighbor's activity is having on them.  They claim that the lights, noise, garbage left on their lawns by visitors, weeks of set-up and removal of the display as well as the pedestrian and vehicular traffic over the span of many weeks all contribute to the diminution in their quiet enjoyment of their homes and their ability to celebrate the holidays on their terms.  They also fear that the display could hinder the ability of emergency vehicles to render assistance in their neighborhood while the display's visitors are clogging the streets.

There is little doubt that a holiday display on this scale would not be permitted in a mandatory homeowners' association and this is only one example of activity than an HOA could and arguably should regulate.  Every set of Association governing documents contains a clause that prohibits activity that interferes with the peaceful possession and enjoyment of the other homes in the community.   In this case, the governing documents could be amended to add specific guidelines regarding holiday displays and exterior alterations to a residence.  No HOA documents would permit any type of display which could be classified as a nuisance or which would bring a nightly influx of non-residents into he community.

A violation of the governing documents such as this holiday display would have resulted in fines and, if those fines exceeded $1,000, they could have become  lien on the property and possibly foreclosed.  Whether you believe that a massive holiday display in a residential area is a nuisance or a blessing, the tools available to a private residential community enforcing its private restrictions are undeniable and they can and should work to the benefit of other lot owners.

Detractors of mandatory HOAs may argue that the local city or county can regulate the use of residential property and enforce Code violations.  Well, that may be true in theory but in practice the local authority sets minimum standards, whereas your community may want higher standards of aesthetics.  Also, the local authority is often reluctant to become embroiled in these kinds of situations and, even when they do take action, they may not be as successful as an HOA would.  In the case at hand, the City of Plantation sued the display's owners and lost.  The City filed a nuisance lawsuit based on alleged traffic issues and the judge ruled against the City. Curiously, the nuisance impact on the neighbors was not addressed in that lawsuit.  In the end, this case illustrates how a private community could more effectively enforce private restrictions as opposed to relying on municipal Code enforcement.

What other advantages can an HOA provide?  Residents in an HOA benefit from the services and amenities that sharing expenses can provide, such as security services, recreational amenities like pools, exercise rooms, tennis courts and more. Lastly, highly functioning HOAs can foster a strong neighborhood connection.  In the case of the besieged cul de sac, that neighborly connection arose not because things were going well but because they were going very wrong.

Monday, October 30, 2017

Countdown to 7/1/18 and the New Website Requirements for FL Condominium Associations

By July 1, 2018, a Florida condominium association with 150 or more units which does not manage timeshare units must have an independent website or web portal wholly owned and operated by the association or a website or web portal operated by a third-party provider.


Creating an in-house website may prove to be too daunting for all but the biggest and most technologically sophisticated communities which means most Florida associations will contract with a third party provider for their website.


Many management companies provide their association clients with a webpage or website to facilitate owner payments and distribution of association information. These websites can be quite useful. However, under this new law, an association could be thrown into violation status if a change in management or a payment dispute with their management company results in their web portal being shut down, even for just a short period of time. Most management company agreements specify that the association webpage or website provided belongs to the Management company and NOT to the association. As such, your board may wish to establish its own independent website (even in addition to the one provided by your management company) to prevent any interruption in service and, thus, violation of the statute. Another alternative is to negotiate ownership of the association website in your agreement with your management company.


If your Florida condominium association consists of 150 or more units, you now must start evaluating your options for compliance. If you have a website provided by your management company, you must review your agreement to confirm whether or not that website is owned by your association or by the management company. What does your agreement provide in terms of transitioning your website content in the event you or the management company terminate your agreement? If your association currently has its own website independent of your management company, do you have a Content Management System (CMS) for that website or do you rely on a website designer to upload your content? If the answer is the latter, you must review that protocol with your webmaster as association documentation must be uploaded timely to your website in order to comply with the new law.


If your condominium association has 150 or more units and you do not have any website at this time, you have a lot of work to do in the coming months. The starting point is to organize your association documents into digital format for ease of uploading to your future website.


The association must post the following documents on its website:


a. The recorded declaration of condominium of each condominium operated by the association and each amendment to each declaration.

b. The recorded bylaws of the association and each amendment to the bylaws.

c. The articles of incorporation of the association, or other documents creating the association, and each amendment thereto. The copy posted pursuant to this sub-subparagraph must be a copy of the articles of incorporation filed with the Department of State.

d. The rules of the association.

e. Any management agreement, lease, or other contract to which the association is a party or under which the association or the unit owners have an obligation or responsibility. Summaries of bids for materials, equipment, or services must be maintained on the website for 1 year.

f. The annual budget required by s. 718.112(2)(f) and any proposed budget to be considered at the annual meeting.

g. The financial report required by subsection (13) and any proposed financial report to be considered at a meeting.

h. The certification of each director required by s. 718.112(2)(d)4.b.

i. All contracts or transactions between the association and any director, officer, corporation, firm, or association that is not an affiliated condominium association or any other entity in which an association director is also a director or officer and financially interested.

j. Any contract or document regarding a conflict of interest or possible conflict of interest as provided in ss. 468.436(2) and 718.3026(3).

k. The notice of any unit owner meeting and the agenda for the meeting, as required by s. 718.112(2)(d)3., no later than 14 days before the meeting. The notice must be posted in plain view on the front page of the website, or on a separate subpage of the website labeled “Notices” which is conspicuously visible and linked from the front page. The association must also post on its website any document to be considered and voted on by the owners during the meeting or any document listed on the agenda at least 7 days before the meeting at which the document or the information within the document will be considered.

l. Notice of any board meeting, the agenda, and any other document required for the meeting as required by s. 718.112(2)(c), which must be posted no later than the date required for notice pursuant to s. 718.112(2)(c).


The association must ensure that privileged information and privileged records are not posted on the association’s website. If protected information or information restricted from being accessible to unit owners is included in documents that are otherwise required to be posted on the association’s website, the association must be sure to redact the privileged content before posting the documents online.


The association’s website must be accessible through the Internet and must contain a password-protected section that is inaccessible to the general public and accessible only to unit owners and employees of the association. Upon a unit owner’s written request, the association must provide the unit owner with a username and password and access to the protected sections of the association’s website that contain any notices, records, or documents that must be electronically provided.


In a highly functioning community, a website is just another technological tool along with online voting and electronic transmission of meeting notices which can make a board’s job easier and the members’ experience more positive.


Sunday, October 15, 2017

Can Your Community Association Stop Bullying and Harassment in Their Tracks?

Bullying in any form cannot be condoned either in schools, workplaces or communities.  While a newly filed bill by Rep. Emily Slosberg (HB 123) has the laudable goal of protecting Florida's senior citizens from being bullied, just how feasible is it in a community association context?  From some of the board and membership meetings I've attended over the years, it is not at all easy to spot who is the bully and who is the bullied and the reality is that sometimes the bully becomes the bullied and vice versa.

HB 123, if passed, would create a new law known as the "Stand Up for Seniors Act." The law appears to apply only to "55 and over" communities in Florida.

                             WHAT BEHAVIOR WOULD THIS LAW ADDRESS?

Bullying under the Act would be defined as "intimidation or harassment that causes a reasonable person to fear for his or her physical safety or property" and may consist of physical actions including gestures; cyberbullying; oral, electronic or written communication or any threat of retaliation for reporting of such acts.  Bullying can take place in person or can be done through the use of technology such as email, texts or the internet; this type of bullying is known as cyberbullying.                                                                                                                                                                              
Harassment is defined by the bill as any racist, threatening, insulting or dehumanizing gesture, use of data or computer software or written, verbal, or physical conduct that has the effect of substantially interfering with or disrupting a member's opportunities, peaceful enjoyment of his or her home or the association common areas, or association benefits.  A person who wrongfully reports an act of harassment in bad faith would be committing harassment.


1.    "55 and Over" associations would have to adopt and review at least every 3 years a policy prohibiting bullying and harassment.

2.    The association's policy must ensure that association members do not subject others to fear or intimidation and the policy must apply to all members.

3.    The  association's anti-bullying, anti-harassment policy must contain the following:

 (A)    A statement prohibiting bullying and harassment.
 (B)    Definitions of bullying and harassment that conform to those set forth in the law.
 (C)    A description of the type of behavior expected from each association member.
 (D)    A requirement that the association investigate any reported act of bullying or harassment.
 (E)    A list of penalties for people who bully and harass or who wrongfully accuse others of bullying and harassment.
 (F)    A procedure for receiving reports of an alleged act of bullying or harassment including allowing a person to anonymously report such an act.  A disciplinary action, though, could not be based solely on an anonymous report.
 (G)    A procedure for a prompt investigation of a report of bullying or harassment.

4.     After the association completes its required investigation of a report of bullying or harassment, the association must submit its findings to the Ombudsman who will then either send a written warning to the member upon the first offense; require the member to complete an anger management treatment program upon a finding of a second offense; or impose a $100 upon a finding of a third or subsequent offense.

                                   IS HB 123 HELPFUL OR JUST WINDOW DRESSING?

HB 123 contains a glaring omission inasmuch as it regulates the behavior of "Association members" but does not seek to address the behavior of abusive tenants, guests, visitors and other residents.  Even more troubling is the obligation being placed on volunteer boards to regulate civility inside their communities.  A board's role in a community association is to enforce the covenants.  Absent a clear violation of those documents, most boards are not well suited to exercise almost entirely subjective judgment to determine who is the perpetrator and who is the victim in many disputes.  Lastly, requiring associations to spend limited resources on investigations, some of which may result in inconclusive findings or findings that the complaint was unsubstantiated, creates a quagmire.

Bullies are pernicious and we have never been as exposed to them as we are today in various forms around the world.  Progress has to start somewhere but I am not convinced that residential senior communities in the Sunshine State should be required to take the lead in this fight. Perhaps our government officials should be the pioneers in this anti-bullying and anti-harassment crusade by setting an example of civility?