Tuesday, February 3, 2015

Email Intelligence-does your Board possess it?


In my last blog entry, I discussed the considerable downside to sending a resignation via email. Today, I am discussing the pros and cons of board members and managers using email for other purposes and how to craft a sound email policy for your association.
 
Board members, managers and association residents are no different from everyone else you know inasmuch as they are all heavily reliant upon electronic means to communicate. Phone conversations and, even more rarely, in-person conversations do still occur but not nearly as frequently as emails and text messages.
 
Whether you are a member of an association board of directors or are a manager assisting such a community, it is important to understand that (a) everything you put in writing can and will be used against you and (b) some topics and situations are not well suited to an email response.
 
Whenever I teach a Board Certification or other educational course, I always ask the directors and managers in attendance to raise their hands if their community has a comprehensive email policy in place. Surprisingly, not a single hand is raised.  Deciding in advance how your Board will handle emails from residents, professional advisers and vendors is not only advisable, it is necessary.
 
Here are some questions you need to ask yourselves and then craft the appropriate email policy with your association attorney's assistance to ensure it complies with both your documents and applicable law.
 
  •         If a resident emails the entire board with a complaint, who should respond? Without protocol in place, chances are everyone will respond (and sometimes with different answers and conflicting information) or no one will respond as a result of assuming someone else did.
  •         If a resident's email is akin to a rant with no specific purpose or request, how should it be answered, if at all? Florida law requires certified inquiries and written requests to inspect the association's books and records to be answered within a certain time period. However, nothing requires boards to respond to venomous email rants. Decide as a board how you wish to handle these kinds of communications. Some boards choose to use a simple auto response such a-"Thank you for your email. Your input will be reviewed and should a response be necessary, you will receive one."
  •         Email communications to and from professional advisers, particularly the association attorney should be deliberate and thoughtful. Since reading and responding to emails is typically a billable event, the board should determine who can send such communications to the attorney or the attorney's staff. In addition, when litigation is being discussed extraneous people should not be added to the recipient list for fear of jeopardizing the attorney-client privilege.
  •         Replying to all on an email and allowing Outlook to automatically complete email addresses (and thereby send to the wrong recipient if you don't check carefully) are the bane of most emailers' existence. This is doubly true for board members and managers so be sure to review your recipient list prior to hitting send. Also, know that blind copies are  no guarantee that your email recipient will not reveal having seen a copy of your email so think twice before doing that as well.
  •         Emails are typically part of the association's official books and records. As a director, if you do not wish to have your personal email address used to send and receive emails related to the business of running your association, it is wise to set up an official association email address for your directors. You should also discuss with your association attorney how many years you must retain those emails and the best method to do so.
 
These are just a few areas that need to be covered in your association's email policy. If you don't have such a policy, what are you waiting for?
 
 

 

Sunday, January 25, 2015

Should you stay or should you go? Directors- think twice before tendering that resignation!.


How many times have you thought about resigning from your association's board of directors because you felt that your efforts and time were not appreciated at best and were resented at worst? I often tell my association clients that I understand how they feel because I do. I served on my HOA Board for one two-year term. While the overall experience was positive and certainly beneficial considering what I do for a living, I remember one uncomfortable incident that occurred during my time on the Board.

One director (we'll call him Jim for the purpose of this blog) decided that having a certain plant material installed in the community was of utmost importance to him. Jim was ordinarily a very nice guy. However, when I mentioned to him that nothing in our association's governing documents actually authorized the planting project he was steadfastly pursuing, he became a little perturbed. Jim became so perturbed in fact that he asked me to resign from the Board to "maintain our friendship". I was taken aback by the request but gave it some thought and ultimately decided that resigning to avoid a conflict was not the right thing to do. While I often counsel directors that making tough decisions is really a job requirement, I also tell them to consider quality of life issues if the stress of being on the board is too much.

Still, I have seen some directors resign in a huff only later to regret that decision. In Florida, Section 617.0807 of the General Not For Profit Corporate Act provides that a director may resign at any time by delivering a written notice to the board of directors. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date.

The statute further provides that resignations must be in writing and most reasonable people agree that email constitutes written communication. Among the other pernicious aspects of email, resigning in a huff via email can pose a huge problem for association directors who later regret that decision. The statute does not require anyone to actually "accept" the tendered resignation so if a beleaguered director writes an email to his or her fellow directors tendering a resignation in the hopes that someone will talk them out of it, it is already too late as they are off the Board. Of course, he or she can appeal to the board to be reappointed to the seat he or she just vacated by virtue of resigning but there is no guarantee that will happen.

If you are an association director who is considering resigning from your board as a result of conflict with fellow directors, time constraints or perceived hostility from your members, take your time to deliberate on the matter before hitting send on that resignation email.
  

Tuesday, January 20, 2015

Attorney Donna DiMaggio Berger will be a guest on the “Condo & HOA Hour”, Wednesday, Jan. 21, 2015

Donna DiMaggio BergerAttorney Donna DiMaggio Berger will be a guest on the “Condo & HOA Hour” on radio station KKNW 1150 AM Wednesday, January 21, 2015. Ms. Berger will provide commentary on national trends in the community association industry and discuss how technology is affecting HOAs and condos, and how volunteer board members are getting the education necessary to effectively lead their communities. The show mixes education, entertainment, guests, features, and call-in conversations.

Ms. Berger is a well-known condominium attorney and shareholder in Becker & Poliakoff’s Community Association Law Practice. She is active on social media and authors the popular “Community Association Law” blog on timely topics and issues of interest for common interest ownership communities.

She has created and manages the popular Condo and HOA Law & Living Group on LinkedIn and companion Condo and HOA Law & Living Group at Facebook, two of the most active social networking groups for community association residents and professionals. She also shares news and views on community association law and living on Twitter at @CondoandHOALaw.

Sunday, January 11, 2015

Trust but Verify-does your Board do its "Due Diligence" when selecting Professional Advisers and Vendors?

The other day I was flipping through an industry magazine and came across an ad touting a law firm that highlighted the firm's ties to a particular state and a particular practice area. It conveyed a strong message that surely will resonate with many volunteer boards looking for that type of firm for that particular type of representation. The only problem is that the Firm mentioned in the ad did not list a physical office in the state they were targeting nor were the attorneys shown in the ad's pictures even admitted to practice in the State!

This kind of experience reminds us that boards do need to undertake a certain level of due diligence when selecting professional advisers and other vendors to represent and service their communities.  If your board is considering a particular candidate, take a look at what that candidate says about his or her company and then confirm. The very old adage Trust but Verify is a good place to start.



Here are some areas to consider:
  • If you are vetting lawyers and law firms, verify that the size of their firm is confirmed by the number of attorneys reflected on their website. Even a state's Bar website may contain inaccurate information in this regard. The best way to determine the size of the firm you are considering is to visit their website and count the attorney names you see!
  • If a professional company or law firm claims to be experts in specialized areas, that reality should be borne out in their published articles and credentials. If you cannot find those anywhere, there may be a problem.
  • Credentials can be easily confirmed. If someone claims to be a member of a particular society, Bar Committee or other industry group or to be Board-certified, most of those membership lists and credentials are easily found these days via the Internet.
  • If a vendor claims to have represented neighboring communities, ask for contact information for those communities and follow up with them for referrals.
  • If a professional adviser touts a blog (yes, like this one!) ask if he or she writes it himself or herself or if it is ghostwritten by a PR company. This last point was a bit of a shock to me when I discovered that some of the blogs I read are not written by the published authors but are, in fact, ghostwritten by a company's PR arm. 
You may lament having to undertake this level of scrutiny when it comes to reviewing professionals who should be conducting themselves professionally. More often than not, you will find that the honor system is firmly in place for most of the advisers with whom you would consider doing business and the information being touted is, in fact, accurate. However, for those instances where there is more sizzle than steak, you will want to avoid potential problems by verifying skills, credentials and publicized information.


Doing your due diligence requires common sense, resourcefulness and yes, the willingness to wait to make a decision until you have done your homework.

Monday, January 5, 2015

Governing Documents Determine How Parking Spaces Are Defined

Question: The association in my condominium is trying to reassign all the parking spaces, which were originally assigned by the developer in 1969. I have a two bedroom unit and ever since I moved 15 years ago, I've had two parking spaces, just like almost every other two bedroom units. Recently, a member of the board changed how parking spaces are assigned. The new plan allows two bedroom units only one parking space. The board of directors say that they can do this by vote. Is this legal? What is the proper way to do it? Thank you, Enrique D.

Answer: Parking spaces are ordinarily subject to reassignment by the Board of Directors when they are common elements. Parking spaces which are appurtenances to the units are not typically subject to reassignment. The answer to your question lies in a review of your governing documents to see how these parking spaces are defined.

Sunday, December 28, 2014

Defining a Nuisance in your Community


If you live in a shared ownership community, you have likely heard the term "nuisance" bandied about now and then. It is an unfortunate byproduct of living in close quarters with others that at some point, another person's conduct may impact your enjoyment of your home.

A nuisance can be summed up as a condition, activity or situation (such as loud noises or foul odors) which interfere with another person's use or enjoyment of property. Every set of association documents I have reviewed over the last two decades contains at least a bare bones nuisance provision.

Legally speaking there are many different types of nuisances which include:

1.      Abatable nuisance-easily removable by reasonable means.
2.      Nuisance per se (aka absolute nuisance)-an interference so severe that it would                    create a nuisance under any circumstances.
3.      Anticipatory nuisance-a condition which has not yet risen to the level of a nuisance but           is very likely to become one.
4.      Attractive nuisance-a dangerous condition that could attract children-a typical example           is an unsafe lake or other body of water.
5.      Permanent nuisance-cannot be readily abated at reasonable expense.
6.      Private nuisance-this one is the most applicable in the community association setting            as it impacts a person's enjoyment of his or her property.
7.      Public nuisance (aka common nuisance)-is an unreasonable interference with a right            common to the general public.

Practically speaking, the following conditions can be considered nuisances depending on how often they occur and the level to which they rise:

-Loud noises-radio, pets barking, screaming, etc.
-Odors
-Parking-blocking in neighbors' cars, parking on others' property, etc.
-Failing to clean up after dogs and/or allowing dogs to run around off leash
-Domestic violence
-Smoking
-Overflowing waste receptacles used by owners undertaking home renovation projects
-Leaving holiday decorations up year-round

The foregoing list is certainly not all-inclusive. Nuisances in communities often result in long-ranging consequences which can include board members being recalled for failing to act, people moving out of the community and, in the most dire circumstances, violence erupting between neighbors.

Which activities have you seen in your community or a neighboring community which could constitute a nuisance? What has your board done to correct the problem?

If you have not looked at, let alone amended, the nuisance provision found in your original developer-written documents, it is time to do so. Why leave it up to a trier of fact to determine what is considered a nuisance in your community? Spell it out for swifter and easier enforcement.

Sunday, December 14, 2014

Filling out lender and title agency questionnaires-should your community association take the extra step?

With growing frequency, volunteer community association board members and association managers are being asked to fill out lengthy and often complicated paperwork on behalf of business entities who are looking to evaluate the value of a particular community.

Your board may receive a request from a lender or title agency (or the attorney for either of the foregoing or for the owner looking to sell or finance his or her home) asking you to fill out a questionnaire which assesses the community's overall condition including disclosing the number of delinquencies, violations, and leased properties among other items. The more brazen of these requests may include language which states that you are providing this information "under penalty of perjury" and that your statements are being relied upon by the company requesting same in order to make that loan or write that insurance policy.

Just last week, I received a request from an insurance company asking one of my clients to guarantee that a policyholder's home was protected 24/7 by armed guards.

Some boards and managers are rightfully reluctant to serve the role of quasi-risk assessment officer for a business entity. However, when an association balks at filling out this paperwork, the typical reaction from the entity requesting same (or from the owner) is that the association is tortiously interfering with the contemplated transaction. Of course, the next sentence usually contains some threat of legal action.

How should your board react to these kinds of requests?

In fact, the Florida shared ownership statutes do not require boards to fill out these questionnaires. The Condominium Act, for example, provides in Section 718.111(12)(e), that an association or its authorized agent is not required to provide a prospective purchaser or lienholder with information about the condominium or the association other than information or documents required by the Act to be made available or disclosed. The Condominium Act further allows the association to charge a fee up to $150 plus the reasonable cost of photocopying and any attorney's fees incurred by the association in connection with preparing a response. Lastly, the statute specifically states that neither the association nor its agent are liable for providing such information in good faith if the response includes the following statement:

"The responses herein are made in good faith and to the best of my ability as to their accuracy."

Even with the ability to charge for the preparation of a response and the statutory protection from liability, some association boards and managers may feel that providing such information could fall under the category of "no good deed going unpunished" should the entity later attempt to recoup losses against the association for the representations it made.

Every one of these questionnaires is slightly different so do speak with your association attorney prior to attempting to fill one out. Your board may also wish to create a policy on which requests will receive responses, which it deems unduly burdensome or risky and the fees it will charge.