Do you have questions about community association law? Or, are you a new board member looking to attend a Board Certification Course?

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FAN's Featured Blog PostFIDUCIARY DUTIES: DIRECTORS ANDOFFICERS OWE THEM, BUT DOES THEASSOCIATION OWE THEM TOO?posted by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum,February 6, 2018

It is the time of year whencommunity associationsacross the state areelecting members to serveon their board of directors.When considering whetheror not you would like to putyour name in the hat as acandidate for a director seat, you should consider theresponsibilities you will have to take on that include the fiduciaryduties owed to the members of your association. Read more

Industry News and ArticlesKeep in mind that some of the articles are directed toward HOAs or

Friends | Colleagues | BoardMembers | CAMs | Residents |Vendors

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Do you have questions about community association law? Or, are you a new board member looking to attend a Board Certification Course?

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condos specifically, but most can be applied to all types ofcommunity associations.

Improve Your Members' Chances of Casting aSuccessful Election Ballot

posted by Donna DiMaggio Berger, The Community AssociationBlog, February 5, 2018 For Florida condominiums and HOAs who have adopted a"condominium style" election process, the election protocol thatwas implemented to discourage voter fraud can also be overlycomplicated for some members to follow. The goal in any electionis to facilitate the greatest voter participation while maintaining theintegrity of the voting process. Read more Building Your Association’s Website – What toAsk and How to Make it Happenposted by Marilyn Perez-Martinez, Florida Condo & HOA Law Blog,February 14, 2018

In my last CUP article Idiscussed the 2017statutory changes thatrequire associations with150 or more units (whichdo not manage atimeshare) to have websites. This month, I continue the discussionby providing some important questions to ask anyone offering tocreate and/or host a website for the association. Read more Staggered Terms Explainedposted by Joseph Adams, Florida Condo & HOA Law Blog,January 21, 2018 The Florida Condominium Act provides that directors’ termsgenerally expire at the next annual meeting after their election.However, directors may serve two-year “staggered” terms, ifprovided by the bylaws or the articles of incorporation. Read more Must The Association's Law Firm's Invoices BeMade Avaialable To Its Members Upon WrittenRequest? posted by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum,

Upcoming Events3/6Condo Board MemberCertification9 am - 12 pm, Becker & PoliakoffVero Beach

3/6Ask The Attorneys6:45 pm - 8:30 pm, KBRSugar Sands Park

3/8Lunch & Learn: Electronic Mediafor Community Associations12 pm - 1 pm, Becker & PoliakoffWest Palm Beach

3/9Is Your Association Healthy, SickOr In Need Of Rehab? 12 pm- 2 pm, KatzmanSouth County Civic Center

3/13HOA & Condo Board CertificationCourse 9 am-12 pm, CPM Embassy Suites in Palm BeachGardens

3/13Covenant Enforcement Class6:30 pm - 7:30 pm, KBRPompano Beach

3/14Is a "No Pet" Building a Thing ofthe Past?2 pm - 4 pm, Becker & PoliakoffFort Lauderdale

3/14HOA Board Member Cert Course6:00 pm - 8:30 pm, KBRPalm Beach Gardens

3/15HOA & Condo Board CertificationCourse 9 am-12 pm, CPM Coral Lakes Clubhouse

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Do you have questions about community association law? Or, are you a new board member looking to attend a Board Certification Course?

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February 20, 2018

An association memberwants to review theassociation’s lawyer’s billssent to the associationover the past year. As aresult, the member submits a written request to access thoserecords. But, is the member actually entitled to see them? Readmore Board Not Obligated to Put Reserves on Agendaposted by Joseph Adams, Florida Condo & HOA Law Blog,January 28, 2018 Yes. Section 718.112(2)(f) of the Florida Condominium Act governsannual budgets and reserves for condominium associations. Thelaw provides that the annual budget must include reserve accountsfor capital expenditures and deferred maintenance. Read more Getting A Mulligan (Do-Over) for Your Board in2018posted by Donna DiMaggio Berger, The Community AssociationBlog, February 12, 2018

Whether we call themmistakes, oversights, slip-ups or boo boos, we allmake them includingvolunteer board memberswho are often hamstrungby both operational andtime constraints. The newyear provides an optimal opportunity to correct items from 2017 oreven earlier. Read more Fining Committee Not a Rubber Stampposted by Joseph Adams, Florida Condo & HOA Law Blog,February 18, 2018 The independent committee appointed by the board to reviewproposed fines can either “confirm” the fine or “reject” it. There isno option to reduce it. Your approach makes sense and used to beauthorized by the law, but it no longer is. Read more

3/152018 Legal Update2 pm - 4 pm, Becker & PoliakoffFort Lauderdale

3/20Condo Board MemberCertification9 am - 12 pm, Becker & PoliakoffPort St. Lucie

3/20Florida CAM Class on Floods9 am - 12 pm, CenterState BankSouth County Civic Center

3/20Jumping Into The Present: WhyUpdating Governing Docs Of YourAssociation Is Critically Important6:30 pm - 7:30 pm, KBRPompano Beach

3/21Monthly Delegate Meeting9:30 am, COBWRAValencia Lakes

3/21Condo Board MemberCertification Course 6:00 pm - 8:30 pm, KBRPalm Beach Gardens

3/22HOA Board Member Certification9 am - 12 pm, Becker & PoliakoffVero Beach

3/22Fiduciary Duty, BusinessJudgement & Fraud Prevention 12 pm - 2 pm, Katzman Holiday Springs Clubhouse

3/27Broward Hot-Topics Breakfast7:30 am - 9:30 am, CAI SEJacaranda Country Club

3/28HOA/CONDO/CO-OP BoardMember Certification9:30 am - 12:30 pm, Becker &

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Do you have questions about community association law? Or, are you a new board member looking to attend a Board Certification Course?

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Condo Should Weigh Pros and Cons of Variancefor Dog Weighing Six Pounds Over Rule Limit posted by Roberto C. Blanch. Florida HOA Lawyer Blog, February12, 2018

A recent Florida caseinvolving a condominiumassociation and the dog ofa 70 year-old army veteranand widower drew nationalattention after it wascovered initially inthe Orlando Sentinel. The newspaper’s reports chronicle how theassociation for the Orange Tree Village condominium is attemptingto ban the dog because it weighs 41 pounds, which is six morethan the maximum weight under its rules, and it may be a bannedbreed. Read more Associations Can Borrow For Hurricane Repairposted by Joseph Adams, Florida Condo & HOA Law Blog,February 4, 2018

In fact, the only place the Florida Condominium Act speaks to anassociation’s authority to borrow money is in the section settingforth the association’s “emergency powers” after a disaster forwhich a state of emergency was declared. The statute grantsassociations certain emergency powers, including the power toborrow money and pledge association assets as collateral to fundemergency repairs without a membership vote, even if otherwiserequired by the condominium documents. Read more

Feel free to email us at sales@campbellproperty.com or visit usat www.campbellpropertymanagement.com Share this newsletter with friends by clicking on

any of the share links below!

PoliakoffWest Palm Beach

3/282018 Legal Update 6:00 pm - 8:30 pm, KBRPalm Beach Gardens

3/29HOA/CONDO/CO-OP BoardMember Certification9:30 am - 12:30 pm, Becker &PoliakoffFort Lauderdale

March TipsKeith's Corner: Keep your plantshydrated This month, you will need tofertilize your lawn if not done so inFebruary. During March, we arestill in the dry season, so makesure to check your plants often fordehydration. A drip irrigationsystem and a thick layer of mulchwill help to keep your plantshydrated. Warmer weather alsobrings more activity from insects.You will want to monitor yourlandscape for any insects andidentify any possible damage. As always, remember to installyour sod green side up!

Keith Carracher, President

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Do you have questions about community association law? Or, are you a new board member looking to attend a Board Certification Course?

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Complete PropertyMaintenance, Inc.Corporate Office (954) 973-3333Jupiter Office (561) 744-3333Fax (954) 979-1424

FAN's February BlogPosts

UpcomingComplimentary HOA andCondo BoardCertification CoursesFlorida CAM Class onFloods - Sponsored byCenterstate Bank - EarnCEUsFidiciary Duties:Directors And OfficersOwe Them, But DoesThe Association OweThem Too?Must The Association'sLaw Firm's Invoices BeMade Available To ItsMembers Upon WrittenRequest?

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Upcoming Complimentary HOA and Condo Board Certification Courses - Florida Association News Blog

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Florida Association News BlogFlorida Associations' resource for news, legal updates, events & education!

Home About FAN Events Campbell’s Website Tech Tuesdays

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Upcoming Complimentary HOA and Condo Board CertificationCoursesTuesday, January, 23rd 2018 in Announcements, Condo, HOA, Legal, Management, Vendors by FAN

Do you have questions about community association law? Or,are you a new board member looking to attend an HOA andCondo Board Certification Course?

Listed below are six upcoming HOA and Condo BoardCertification Courses. These courses are free, and DBPRapproved. These courses are a board member’s guide to thestatutes and rules governing associations in Florida and fulfillcondominium and HOA board member state certificationrequirements.

2018 Board Certification Course in Jupiter – Thursday, February 8, 2018 from 9:00 AM to 12:00 PM. Clickhere for more information and to register.

2018 Board Certification Course in Fort Lauderdale – Monday, February 19, 2018 from 9:00 AM to 12:00PM. Click here for more information and to register.

2018 Board Certification Course in Palm Beach Gardens – Tuesday, March 13, 2018 from 9:00 AM to 12:00AM. Click here for more information and to register.

2018 Board Certification Course for COBWRA – Thursday, March 15, 2018 from 9:00 AM to 12:00 PM. Clickhere for more information and to register.

2018 Board Certification Course in Highland Beach – Tuesday, April 10, 2018 from 9:00 AM to 12:00 PM. Clickhere for more information and to register.

2018 Board Certification Course in Pompano – Wednesday, April 11, 2018 from 12:30 PM to 3:30 PM. Clickhere for more information and to register.

by Ashley Dietz Gray, Marketing Director, Campbell Property Management

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FIDUCIARY DUTIES: DIRECTORS AND OFFICERS OWE THEM, BUT DOES THE ASSOCIATION OWE THEM TOO? - Florida Association News Blog

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FIDUCIARY DUTIES: DIRECTORS AND OFFICERS OWE THEM,BUT DOES THE ASSOCIATION OWE THEM TOO?Tuesday, February, 6th 2018 in Condo, HOA, Legal, Management, Staff by admin

It is the time of year when community associations across thestate are electing members to serve on their board ofdirectors. When considering whether or not you would like toput your name in the hat as a candidate for a director seat,you should consider the responsibilities you will have to takeon that include the fiduciary duties owed to the members ofyour association.

Directors and officers owe their community’s members a dutyof care and a duty of loyalty to act in the best interests of theirassociation by acting with loyalty, honesty, and in good faith.Directors and officers owe a duty to exercise reasonablebusiness judgment and to use ordinary care and prudence in the operation of the association. Directors and officersshould perform their activities in good faith and in the best interest of the association, exercising the care an ordinaryperson would use under similar circumstances.

That said, directors and officers are not required to be perfect. Decisions of the board are typically protected by the“business judgment rule.” The “business judgment rule” acts to preserve and protect a board’s decision so long asthe board acted in a “reasonable” manner. In general, absent actual wrongdoing in the form of fraud, self-dealing, orunjust enrichment, corporate directors and officers cannot be held personally liable for corporate acts. Theprotection afforded by the business judgment rule fades away when an act crosses the line from “negligence” to“gross negligence”.

For example, breaches of these fiduciary duties would occur when a director receives compensation in the form of aservice or money for the privilege of doing business with the director’s association or when a director discloses to athird party privileged information intended for the board of directors only. In the event of a breach of such fiduciaryduty, there is little recourse against a director or officer who has committed the breach, except to file a lawsuit, which

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is often a costly endeavor.

While it is clear that directors and officers owe fiduciary duties to their association’s members, can a member allegea cause of action against one or more board members arguing that they breached their fiduciary duty owed to theassociation? The answer to this question is unequivocally, “no”. This was made clear as recently as August 30,2017 in a recent Fourth District Court of Appeal decision in Collado v. Baroukh, et al., 42 Fla. L. Weekly D1917 (4thDCA Fla) citing Towerhouse Condo, Inc. v. Millan 475. So.2d 674 (Fla. 1985.

In regard to directors and officers immunity from civil liability, section 617.0834, Florida Statutes, provides in relevantpart, that:

(1) An officer or director of a nonprofit organization …is not personally liable for monetary damages to any personfor any statement, vote, decision, or failure to take an action, regarding organizational management or policy by anofficer or director, unless:

(a) The officer or director breached or failed to perform his or her duties as an officer or director; and

(b) The officer’s or director’s breach of, or failure to perform, his or her duties constitutes:

1. A violation of the criminal law, …;

2. A transaction from which the officer or director derived an improper personal benefit, directly or indirectly; or

3. Recklessness or an act or omission that was committed in bad faith or with malicious purpose or in a mannerexhibiting wanton and willful disregard of human rights, safety, or property.

(2) For the purposes of this section, the term:

(a) “Recklessness” means the acting, or omission to act, in conscious disregard of a risk:

1. Known, or so obvious that it should have been known, to the officer or director; and

2. Known to the officer or director, or so obvious that it should have been known, to be so great as to make ithighly probable that harm would follow from such action or omission.

In the end, it is wise for board members and officers to act reasonably under the circumstances in order to providefor better insulation against any argument that a breach of fiduciary duty occurred.

Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation ofcondominium, homeowner, commercial and mobile home park associations, as well as exclusive country clubcommunities and the developers who build them. He is a regular columnist for The Condo News, a biweeklypublication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.

Tags: 2018 Florida Condo Elections, 2018 Florida HOA Elections, Condo Elections, Fiduciary Duties, HOA Elections,Rembaum

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The Community Association Law Blog: Improve Your Members' Chances of Casting a Successful Election Ballot

http://www.communityassociationlawblog.com/2018/02/improve-your-members-chances-of-casting.html[2/27/2018 12:31:27 PM]

By Donna DiMaggio Berger

Home Donna DiMaggio Berger Becker & Poliakoff Community Association Law

Monday, February 5, 2018

Improve Your Members' Chances of Casting aSuccessful Election Ballot

Every year, I attend many of myclients' annual meetings andelections and it is alwaysdisappointing when some members'election ballots must be discardeddue to avoidable errors.

For Florida condominiums and HOAswho have adopted a "condominiumstyle" election process, the electionprotocol that was implemented todiscourage voter fraud can also beoverly complicated for somemembers to follow. The goal in anyelection is to facilitate the greatestvoter participation while maintainingthe integrity of the voting process.

Here are some ways you caneducate 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 isowned by more than one person or is owned by a corporation or other business entity, make sureyou have a voting certificate on file for each unit impacted by this requirement and, wherepossible, amend your documents so that units owned by more than one person or by husbandand wife are exempt from a requirement that is better applied to only units owned by entities andtrustees;

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

3. Members need to understand that the outer envelope must identify the name of the unitowner, the unit # and be signed by the member or the voting certificate holder. Outer envelopesthat 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 avoting certificate or a proxy. The inner ballot envelope should not contain any markings whichwould identify the individual who cast that ballot;

5. Members can vote for fewer than the permitted number of candidates but not more than the

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The Community Association Law Blog: Improve Your Members' Chances of Casting a Successful Election Ballot

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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, thejudgement 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 thepermitted number of candidates; and

7. Members should hand deliver or mail back their election ballots. Preferably, the owner willpersonally 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 eligiblevoters casting a ballot; that is a very small percentage of members deciding the composition of aBoard of Directors which will make important and monetarily significant decisions for the comingyear(s). If you deduct a number of ballots from that already small number due to technical flawsor make it impossible for out of state voters to have time to return their ballots, the chance ofhaving the election results truly mirror the membership's desires plummets.

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

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

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Building Your Association’s Website – What to Ask and How to Make it Happen - February 14, 2018 - Florida Condo & HOA Law Blog

http://www.floridacondohoalawblog.com/2018/02/14/building-associations-website-ask-make-happen/[2/27/2018 12:32:52 PM]

Building YourAssociation’s

Website – Whatto Ask and How

to Make itHappen

BY MARILYN PEREZ-MARTINEZ

COMMUNITY UPDATE FEATURED

http://www.floridacondohoalawblog.com/author/mperezmartinez/http://www.floridacondohoalawblog.com/community-update/http://www.floridacondohoalawblog.com/community-update/featured/http://www.floridacondohoalawblog.com/

Building Your Association’s Website – What to Ask and How to Make it Happen - February 14, 2018 - Florida Condo & HOA Law Blog

http://www.floridacondohoalawblog.com/2018/02/14/building-associations-website-ask-make-happen/[2/27/2018 12:32:52 PM]

In my last CUP article – www.MyCondoNeedsAWebsite.com – I discussed the 2017 statutory

changes that require associations with 150 or more units (which do not manage a timeshare) to have

websites. This month, I continue the discussion by providing some important questions to ask anyone

offering to create and/or host a website for the association.

1. What is the cost of the URL/Domain Name (annual basis)?

2. What is the encryption (security) for the site?

3. What will it cost to design and maintain the website? How many pages/subpages does this cost

provide? Who does the site uploads and how frequently can they be done?

4. What are the server storage costs and how are they calculated? How can the association

estimate the cost when gathering the documents required by the statute?

5. Is there a limit to the number of usernames and passwords the site will allow? How is user

access terminated when an owner sells the unit?

6. Is the website an open or receptive web design, making it easy to view from a computer, tablet

or phone? What happens if the company that designs/maintains the website or stores the

documents goes out of business?

Note that these questions, once answered, may lead to more questions. This is to be expected given

each association’s unique needs and it means that there is no one-size-fits-all answer. For example, if

the association has an in-house staff to manage updates directly there is obviously no need to pay a

third party for updates and site maintenance but the association may, however, find it more

economical to have a third-party vendor handle the website design and initial content upload. Also, an

association may have an IT department capable of providing technical guidance but not actually

handling the set-up and design, while still other associations may have no IT department at all.

It is also important to know that many of the answers and representations of the designer/host should

be part of the contract to ensure proper expectations and enforcement. The contract should also be

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MUST THE ASSOCIATION’S LAW FIRM’S INVOICES BE MADE AVAILABLE TO ITS MEMBERS UPON WRITTEN REQUEST? - Florida Association Ne...

http://www.campbellpropertymanagement.com/...e-associations-law-firms-invoices-be-made-available-to-its-members-upon-written-request/[2/27/2018 12:35:14 PM]

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MUST THE ASSOCIATION’S LAW FIRM’S INVOICES BE MADEAVAILABLE TO ITS MEMBERS UPON WRITTEN REQUEST?Tuesday, February, 20th 2018 in Condo, HOA, Legal by admin

An association member wants to review the association’slawyer’s bills sent to the association over the past year. As aresult, the member submits a written request to access thoserecords. But, is the member actually entitled to see them?Pursuant to the relevant sections of Chapter 718, Chapter719, and Chapter 720 of the Florida Statutes, regardingcondominiums, cooperatives, and homeowners’ associations,respectively, all members (or their authorized representatives)have the right to access their community association’s officialrecords for inspection and copying. However, this right is notabsolute as there are several official records which are exempt from member access.

Among these exempted official records are records protected by the attorney-client privilege, as described in section90.502, Florida Statutes, and any record protected by the work-product privilege. Generally, the attorney-clientprivilege protects communications between a lawyer and the lawyer’s client; whereas, the work-product privilegeprotects, for example, a record prepared by an association attorney or prepared at the attorney’s express directionwhich reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the associationand which was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings orwhich was prepared in anticipation of litigation or proceedings until the conclusion of the litigation or proceedings.

While these exceptions to official records access are expressly provided in the relevant sections of the FloridaStatutes, questions arise as to whether or not a community association’s legal invoices are protected by theattorney-client privilege and/or the work-product privilege. Moreover, can the association redact its legal invoices tokeep privileged information provided in the legal invoices from access by the member? You bet the association can!

This issue was decided in the arbitration case of Jandebeur v. Marine Terrace Association, Inc. (Arbo. Case No.2014-03-5716) in which the association, in the end, was represented by Kaye Bender Rembaum, Attorneys at Law.

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MUST THE ASSOCIATION’S LAW FIRM’S INVOICES BE MADE AVAILABLE TO ITS MEMBERS UPON WRITTEN REQUEST? - Florida Association Ne...

http://www.campbellpropertymanagement.com/...e-associations-law-firms-invoices-be-made-available-to-its-members-upon-written-request/[2/27/2018 12:35:14 PM]

(This case involved a cooperative under Chapter 719, Florida Statutes, which is substantially the same as Chapter718, Florida Statutes. Arbitration is not applicable to Chapter 720, Florida Statutes.) The law firm took the case overfrom the association’s prior counsel who, on behalf of his client-association, advised the board not to provide accessto his law firm’s billing to the association, claiming the entire bill to be privileged.

In this case, the member made written requests to inspect the association’s official records, including legal invoicesfrom the association’s prior law firm. Upon the advice of the association’s prior attorney, the association refused toprovide the owner with access to the requested legal invoices claiming that they were inaccessible, in their entirety,because they contained attorney-client privileged communications and attorney work-product.

In deciding the matter in favor of the member, the arbitrator held that refusing access to the entire legal invoices wasimproper; however, the arbitrator made it patently clear that “[i]f attorney work product is contained in an invoice,e.g. a description of work performed reveals the attorney’s thoughts, etc., regarding the litigation, that informationmay be redacted.” Therefore, the arbitrator in this case clearly and expressly opined that portions of legal invoicesmay be redacted to remove information protected by the attorney-client privilege and/or the work-product privilege.

Given the official records exemptions from member access as discussed above, the arbitrator’s decision in this caseis in line with the statutory exemptions provided by the relevant sections of Chapter 718, Chapter 719, and Chapter720 of the Florida Statutes. Therefore, do not be surprised if, upon a member’s written request to inspect theassociation’s law firm’s billing, invoices are presented only after significant redaction to protect both attorney-clientand work-product privileges.

While arbitration cases decided by the Arbitration Section of Florida’s Department of Business and ProfessionalRegulations, Division of Florida Condominiums, Timeshares, and Mobile Homes, do not create binding precedentson any other parties (meaning, the same issue could be decided differently in another case) and are not applicableto homeowners’ associations, they are often relied upon for guidance, as many community association attorneys do.Therefore, when presented with a written request for access to your association’s legal invoices, you may want tohave your association’s attorney review the requested invoices to see if there is any privileged information whichshould be redacted to protect the privilege prior to the member’s inspection and copying of the official records.

Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation ofcondominium, homeowner, commercial and mobile home park associations, as well as exclusive country clubcommunities and the developers who build them. He is a regular columnist for The Condo News, a biweeklypublication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.

Tags: Condo, HOA, Invoices, Legal, Records, Rembaum

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One thought on “MUST THE ASSOCIATION’SLAW FIRM’S INVOICES BE MADE AVAILABLE TOITS MEMBERS UPON WRITTEN REQUEST?”

Jason Roy says:

February 26, 2018 at 7:37 AM

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Board Not Obligated to Put Reserves on Agenda - January 28, 2018 - Florida Condo & HOA Law Blog

http://www.floridacondohoalawblog.com/2018/01/28/board-not-obligated-put-reserves-agenda/[2/27/2018 12:36:07 PM]

Board NotObligated to Put

Reserves onAgenda

BY JOSEPH ADAMS

JANUARY 28, 2018 0

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Board Not Obligated to Put Reserves on Agenda - January 28, 2018 - Florida Condo & HOA Law Blog

http://www.floridacondohoalawblog.com/2018/01/28/board-not-obligated-put-reserves-agenda/[2/27/2018 12:36:07 PM]

Q: Historically, the unit owners in our condominium are given the opportunity to vote on

waiving reserve funding each year. When approved, this resulted in lower assessments. This year, the

board adopted a budget with fully-funded reserves and did not give the owners the opportunity to vote

to waive. Is this allowed? (C.O. via e-mail)

A: Yes. Section 718.112(2)(f) of the Florida Condominium Act governs annual budgets and

reserves for condominium associations. The law provides that the annual budget must include reserve

accounts for capital expenditures and deferred maintenance. Those accounts must include roof

replacement, building painting and pavement resurfacing regardless of the amount of

replacement/deferred maintenance expense. Reserves are also required for any other item that has a

deferred maintenance expense or replacement cost that exceeds $10,000. The statute outlines the

formula for funding reserves and provides that reserves must be fully funded unless the owners vote

in advance to waive or reduce full funding.

The board is authorized, and arguably even required, to adopt a budget with fully-funded reserves in

the absence of an owner vote waiving full funding. If the board elects to not put that matter to an

owner vote, the association is obligated to adopt a budget with fully-funded reserves. There is a

process where owners petition for the call of special meetings to address any lawful subject, and that

would include consideration of reserve voting. If enough of your owners want to have the right to

vote on waiving reserves, then that would be the process to follow if the board does not choose to

offer the choice, which many do not.

As discussed in this column previously, while condominium associations are required to have

reserves as provided by statute, homeowners’ associations generally are not required to have reserves

under the statute. However, if a homeowners’ association has reserves that were created in the

developer’s budget, or created by a majority vote of the members, such reserves are treated in the

same manner as condominium reserves.

Q: I am a seasonal resident. I recently e-mailed the manager for my homeowners’ association and

asked that they e-mail me a number of records, including all of the contracts that the association has

ever been a party to. The manager wrote back and told me that the records would be available at the

management company office, but that they only had contracts going back seven years. I am currently

out of state and asked for them to be emailed to me. They refused. Can they refuse to e-mail me the

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Board Not Obligated to Put Reserves on Agenda - January 28, 2018 - Florida Condo & HOA Law Blog

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records and are they only obligated to have the last seven years of contracts? (A.J. via e-mail)

A: Yes on both counts. Owners in both homeowners’ associations and condominium associations

have the right to inspect the records of the association and have copies made at their expense. Both

statutes contain broad definitions of what constitute the “official records” of the association, and

include a catchall provision stating that any written record of the association not specifically listed in

the statute, but which relates to the operation of the association, is considered an official record.

Therefore, written contracts to which the association is a party would be official records of the

association and would be a record that the unit owners are entitled to inspect and copy. However,

such records are only required to be kept for seven years.

Additionally, the right of an owner is to “inspect” the records, and have copies made at their expense

after they have inspected them. Associations are not required to have copies e-mailed, mailed or

otherwise delivered to owners on their request. If you are out of town, you are entitled to designate a

third person as your authorized representative to inspect (and copy) the records on your behalf.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by

e-mail to jadams@bplegal.com. Past editions may be viewed at floridacondohoalawblog.com

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The Community Association Law Blog: Getting A Mulligan (Do-Over) for Your Board in 2018

http://www.communityassociationlawblog.com/2018/02/getting-mulligan-do-over-for-your-board.html[2/27/2018 12:37:00 PM]

By Donna DiMaggio Berger

Home Donna DiMaggio Berger Becker & Poliakoff Community Association Law

Monday, February 12, 2018

Getting A Mulligan (Do-Over) for Your Board in 2018Whether we call them mistakes,oversights, slip-ups or boo boos, weall make them including volunteerboard members who are oftenhamstrung by both operational andtime constraints.

The new year provides an optimalopportunity to correct items from2017 or even earlier. The law allowsa corporation which has takenauthorized actions but which weredone 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 obtainthe requisite membership approval.

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

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

4. You were challenged when you attempted to enforce a rule or restriction because a priorboard 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 associationemployee, levied a special assessment or adopted a budget, etc.) outside the scope of a dulynoticed Board meeting and vote.

6. Your members passed an amendment and you failed to record it or an amendment wasprepared 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 approveof and ratify all prior changes, additions and modifications made by the Association to theCommon Elements and Association property or any other action that required a membership vote

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The Community Association Law Blog: Getting A Mulligan (Do-Over) for Your Board in 2018

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which was not taken.

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

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

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

5. Prior unauthorized or procedurally improper actions require a discussion regarding thenature 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 withrecording that amendment or amendments; if not we may need to start the process over again. Ifyou have been sitting on an amendment which was prepared but never voted upon, dependingon 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 inthe composition of the Board may have resulted in items falling through the cracks. If you havequestions about how to correct any of these problems in your community, you can email me atdberger@bplegal.com or by phone at .1-844-CAREBP1.

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Fining Committee Not a Rubber Stamp - February 18, 2018 - Florida Condo & HOA Law Blog

http://www.floridacondohoalawblog.com/2018/02/18/fining-committee-not-rubber-stamp/[2/27/2018 12:37:50 PM]

FiningCommittee Not aRubber Stamp

BY JOSEPH ADAMS

FEBRUARY 18, 2018 0

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Fining Committee Not a Rubber Stamp - February 18, 2018 - Florida Condo & HOA Law Blog

http://www.floridacondohoalawblog.com/2018/02/18/fining-committee-not-rubber-stamp/[2/27/2018 12:37:50 PM]

Q: I am on the fining committee of our association. The management company expects us to

“rubber stamp” every proposed fine, but that is not always our desire. We would like to correct

behavior and are not in it for the money. Sometimes the board levies a fine that we think is excessive.

Can we reduce the amount of the fine or are our choices to either accept it all together or throw it out

all together? (J.O. via e-mail)

A: The independent committee appointed by the board to review proposed fines can either

“confirm” the fine or “reject” it. There is no option to reduce it. Your approach makes sense and used

to be authorized by the law, but it no longer is.

Q: I live in a community that is made up of both condominiums and single-family homes. The

master association is in the process of amending its documents. However, there is a question as to

whether our community is governed by Chapter 718 or Chapter 720? How can we tell? (V.B. via e-

mail)

A: It is desirable to have an opinion from legal counsel in determining what, if any, statutory

regime applies to your community. This is one of the most fundamental legal issues you face. For

Chapter 718 of the Florida Statutes, the Florida Condominium Act, to apply an association must meet

the definition contained in Section 718.103(2) of the statute, which states that a condominium

association is an entity responsible for the operation of common elements owned in undivided shares

by the condominium unit owners, or is an entity which operates or maintains other real property in

which condominium unit owners have use rights. Further, membership must be made up of

exclusively condominium unit owners or their elected or appointed representatives. Therefore, if your

community was made up of entirely condominium units, the master association would likely also be a

condominium association. If your “single family homes” are not condominiums, it is likely that your

“master association” is not governed by the Condominium Act.

If I had to guess, I would assume that you are governed by Chapter 720 of the Florida Statutes, the

Florida Homeowners’ Association Act. In order to determine whether the master association is

covered by the statute, it would be necessary to review the governing documents to confirm that

membership is mandatory, that the association has lien rights in the event that assessments are unpaid,

and that the use of the property is residential.

Q: Recently, my condominium association sent out the notice of the annual meeting, which

included a vote on amendments to our condominium documents. On the notice, it stated that the

board was recommending approval of the proposed amendments. Is this appropriate? (S.A. via e-

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Fining Committee Not a Rubber Stamp - February 18, 2018 - Florida Condo & HOA Law Blog

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mail)

A: Probably. Many condominium documents provide that amendments may be proposed either

by a vote of a majority of the board of directors or by some percentage of the unit owners. If the

board has voted to propose an amendment, the board may also vote to recommend approval of the

proposed amendment. If the board properly proposes the amendment, and properly authorized

including a favorable recommendation, it is appropriate for the materials sent out by the association in

connection with the annual meeting, including the proxy form, to include the board’s

recommendation.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by

e-mail to jadams@bplegal.com. Past editions may be viewed at floridacondohoalawblog.com

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Condo Should Weigh Pros and Cons of Variance for Dog Weighing Six Pounds Over Rule Limit — Florida HOA Lawyer Blog — February 12, 2018

https://www.floridahoalawyerblog.com/2018/02/condo-weigh-pros-cons-variance-dog-weighing-six-pounds-rule-limit.html[2/27/2018 12:40:11 PM]

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Roberto C.Blanch

Condo Should Weigh Pros and Cons ofVariance for Dog Weighing Six PoundsOver Rule LimitFEBRUARY 12, 2018by Roberto C. Blanch

A recent Florida case involving a condominiumassociation and the dog of a 70 year-old armyveteran and widower drew national attentionafter it was covered initially in the OrlandoSentinel. The newspaper’s reports chroniclehow the association for the Orange Tree Villagecondominium is attempting to ban the dogbecause it weighs 41 pounds, which is six morethan the maximum weight under its rules, and itmay be a banned breed.

As a result of the association’s decision, retired veteran

Housing and Urban Development after an arbitratordetermined he had to surrender the dog by Jan. 11. The

federal agency is nowlooking into whether theassociation can force thelong-time resident tosurrender his emotionalsupport dog.

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