Ask the average community association resident whether or not the association board has a duty to protect him or her from foreseeable risk inside the community and the answer is likely to be a resounding "OF COURSE".
Whether or not that duty is spelled out in the governing documents there is the expectation that the association will ensure that residents do not get sucked into a non-compliant pool drain and drowned, trapped inside an unsafe elevator or mugged in the parking lot.
With the growing threat of Zika virus in the U.S. and particularly in South Florida what, if anything, should your community be doing to lessen this threat to your residents?
A physical inspection of your community is warranted. The Centers for Disease Control and Prevention (CDC) has issued important recommendations on how to address any property conditions which might be attracting mosquitoes and providing convenient breeding grounds for them. Standing water in your community should be drained if possible or treated with insecticides. Non-functioning fountains should be drained and turned off and birdbaths drained.
The CDC is also recommending that air conditioning be used to combat mosquito breeding grounds so if you have vacant units or you keep the air off in your clubhouse or other indoor common areas to save money now is the time to address those situations.
Aerial spraying in your community may be useful in combating mosquitoes but may also draw the ire of your chemically sensitive residents. Speak to your city or county officials to see what if anything is being done to address a potential Zika problem in your geographic area.
Lastly, if you host outdoors community events in the summer for your residents you might want to consider hosting those events inside this year rather than outdoors. You might also wish to adjust the hours your pool and other common areas are open at night.
There is no reason for your community to panic nor is there a reason for your Board to undertake responsibilities that are not yours to bear. However, taking reasonable steps to prevent a potentially devastating problem for some of your residents should be explored.
For more information about how to combat the Zika virus in your community please click here: http://www.cdc.gov/zika/prevention/prevent-mosquito-bites.html
Wednesday, August 10, 2016
Sunday, August 7, 2016
Thursday, July 28, 2016
What does this mean for your multifamily building?
If you manage or serve on the board of a multifamily condominium or cooperative building in Florida which does not currently have a full sprinkler system and you have not yet taken an opt out vote, relying on media articles, newsletters and communications from attorneys who do not serve your community is not your best course of action. Blog posts, including this one, are a good way to start a conversation about an important topic but an informed board must make that decision by relying upon its own advice of counsel.
Tuesday, July 19, 2016
Sunday, May 22, 2016
Wednesday, May 11, 2016
In my home community, a recent vote establishing a reserve for our roads had at least one of my neighbors seeing red. While the vast majority of owners in my HOA (including me) wanted to fund the reserve to ensure money would be available for future road repairs and maintenance, Susan saw no point in putting that much money away for a rainy day. She asked questions (repeatedly) and tried to convince others to vote down the question. Ultimately, the reserve vote passed despite Susan's many efforts to derail it. While she may have raised the blood pressure of some people, I saw the value in having Susan's voice heard. Many people serving on community association boards these days previously served on corporate boards or in leadership capacities in their professional careers. One of the first things leadership training establishes is that discordant voices in an organization can be extremely beneficial to growth and the ultimate success of that organization. Think of all the highly successful companies you know and ask if they achieved that success as a result of having a bunch of "yes men and women" around.
If differences of opinion can be healthy in the for-profit corporate environment why are they so shunned in the not-for-profit community association setting? Sometimes boards discount those voices because they don't like the message; other times it is because the messengers are, frankly, not very nice people. That being said, it remains important that boards try to separate the message from the messengers. Occasionally, those "dissidents" might be seeing something important that your board is missing.
In the Five Dysfunctions of a Team; A Leadership Fable, author Patrick Lencioni, reveals the five dysfunctions that can derail any team effort as:
- Absence of trust;
- Fear of conflict;
- Lack of commitment;
- Avoidance of accountability; and
- Inattention to results.
Isn't a volunteer board of directors really supposed to be a team effort? If you agree that it is then you must not keep those dissenting voices (whether they are emanating from the owners or from fellow board members) from being heard and you must trust that doing so will not weaken the community or your board in any way. Your board is required to make tough decisions even in the face of strong opposition.
Far too many community association boards become dysfunctional by not keeping conflict in the proper perspective. Conflict, if properly managed, can actually make your community stronger and more resilient in the long haul.
Monday, April 11, 2016
Are criminal background checks for new purchasers and renters in a community association discriminatory?
Most community associations screen potential purchasers and potential renters. In fact, when surveyed, many board members state that screening community occupants is one of their primary functions.
What is the #1 item that typically presents a red flag on a screening application? If you said evidence of a criminal history you would be correct and it follows closely on the heels of financial red flags such as prior bankruptcies.
HUD's General Counsel, Helen R. Kanovsky, issued a Guidance Memo which warns that looking at the criminal background of applicants may have a disparate impact on minorities who may have been subject to different scrutiny under the criminal justice system. According to the memo, as many as 100 million Americans (or 1/3 of the population) has a criminal record of some sort.
When your board is presented with a background check that reveals a criminal history, there is more to consider than just the fact that the applicant has a record. If a background check reveals that the applicant has previously been arrested or convicted of a crime you must ask experienced association counsel the following questions:
-Did the crime involve theft or violence?
-Was the applicant charged with a misdemeanor or a felony?
-How long ago was the crime committed?
-Did the crime involve an attack on a minor?
-Did the crime result in a conviction?
Certainly, an applicant who committed a white-collar crime twenty years ago presents less of a security concern for a community association than an applicant who was arrested for rape or another violent crime within the last five years. Denying applications for any reason requires a conversation with association counsel. Denying applications based on criminal background is an even more compelling reason to have that conversation.
HUD's General Counsel concluded:
The Fair Housing Act prohibits both intentional housing discrimination and housing practices that have an unjustified discriminatory effect because of race, national origin or other protected characteristics. Because of widespread racial and ethnic disparities in the U.S. criminal justice system, criminal history-based restrictions on access to housing are likely disproportionately to burden African Americans and Hispanics. While the Act does not prohibit housing providers from appropriately considering criminal history information when making housing decisions, arbitrary and overbroad criminal history-related bans are likely to lack a legally sufficient justification. Thus, a discriminatory effect resulting from a policy or practice that denies housing to anyone with a prior arrest or any kind of criminal conviction cannot be justified, and therefore such a practice would violate the Fair Housing Act.
This does not mean that your board should discontinue the responsible screening of potential purchasers and prospective renters; in fact, abandoning careful screening could subject the association to significant liability. In order to walk the tightrope between screening applications and avoiding a discriminatory effect from such screening, your Board must address each application on a case by case basis and prove that your approval decision is justified and is necessary to achieve a substantial, legitimate, nondiscriminatory interest of the community.