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.

Sunday, November 23, 2014

When tragedy strikes in a community association

Very recently, a manager I know and worked with was viciously attacked while on duty in his community. A former employee walked into the management office and shot this unsuspecting young man in the head.

People I know asked me what could have been done to prevent this tragedy from occurring. It is always easy to be a Monday-morning Quarterback, but the fact remains that if someone is intent on doing you harm, he or she can usually find a way.

That being said, this attack does necessitate an important discussion about how to protect an association's employees, directors and residents. Whenever you are dealing with volatile personality types, it is important to plan thoughtfully. We have previously seen violence in community associations where a resident attacked a director and vice versa. We have also seen resident vs. resident crime. director vs. director crime and resident vs. manager and director vs. manager attacks. Sadly, no group is immune from being attacked or being the attacker.

What if you don't know someone has such a personality? Well, hiring decisions should not be taken lightly. In this case, a thorough personality screening of this employee may or may not have revealed a history of mental illness or highlighted other troubling personality issues. Given how some people react to bad news, terminating an employee might also require speaking with a professional ahead of time to frame the news in the best possible light and to take all necessary precautions should the employee present a problem immediately upon learning of the termination.

If you have any inkling that a resident, employee or director may have violent tendencies, you must take immediate steps to defuse the situation, reach out to all appropriate professionals and service agencies and do not go it alone. Can the management office be equipped with a metal detector? Of course, but how many communities want to go to this extreme?

Fortunately, Jeremy Holland, the manager who inspired this blog, is recovering with the help and overwhelming support of his family, friends and the community he served.

Monday, November 17, 2014

Multiculturalism and your Community Association


Many communities around the country have foreign members who are not proficient English speakers. Others have members who are fluent in English but would prefer to converse in their native tongue. I have attended Board and Membership meetings  in Florida where residents (and some directors) spoke Spanish, French, Creole, Portuguese, Chinese, Greek, Italian and Russian.
Some association directors feel strongly that only English should be spoken at board and membership meetings and only English should be used for an association's written communications.
 However, if your board's goal is to communicate effectively with your members and you do have members who would benefit from translating that message into their native tongue, aren't you thwarting your own goals by not doing so?
 Communities in certain areas like South Florida, Texas, California, Arizona, New York and other areas with high concentrations of foreign residents, may want to give some thought to how multiculturalism can benefit and strengthen their neighborhoods.
 When was the last time you reviewed your applications for purchase and rentals with an eye towards foreign purchasers and renters? Do you request background information from their countries and do you have any of your information published in other languages? What does your association website look like and is there a translation button on there for residents who wish to view the information in a different language?
Does your community have social events which expose foreign members to traditional American holidays while also hosting events which expose your American members to foreign holiday celebrations or customs?
As our world continues to shrink, private residential communities need to think about how multiculturalism can and should play a role in their policies and protocols. What are you willing to do to create a feeling of inclusion and what do you consider unnecessary and/or inadvisable?
My firm, Becker & Polikaoff, has created a unique resource for communities with Hispanic directors and members known as Condomundousa. You can find Condomundousa on Facebook, Twitter and LinkedIn as well as read their blog at www.condomundousa.com.

Sunday, November 2, 2014

Videotaping community association meetings-where do the owners' rights start and the directors' rights end?

Have you ever sat in a board or membership meeting only to notice at some point that someone in the audience is videotaping the meeting? Did the fact that you were being filmed concern you at all?

The Florida Legislature granted condominium and HOA members the right to videotape board and membership meetings. Florida cooperative owners can only videotape board meetings. However, that right is tempered by the fact that such taping is subject to reasonable board rules and regulations. The reasons for wanting to videotape a meeting can vary from member to member. Some people feel that it is the only possible method to accurately capture what transpires at a meeting; this is particularly true when a board does not provide timely and accurate meeting minutes after the fact. For other people, the ability to videotape may provide a handy tool to harass or annoy someone they don't like in the community. Many boards do create reasonable rules and restrictions regarding the videotaping of meetings and those rules typically require that someone planning to use such equipment advise the board in advance and tape from a certain distance during the meeting. In addition to thinking about how the person videotaping should conduct himself or herself, it is important to give some thought as to how those tapes will be used after they are made.

If you learn that tapes of your community meetings are being posted on Youtube or other public forums, you may have legitimate privacy and security concerns. Those tapes can reveal directors' faces and names (given at roll call) as well as such sensitive information as a director advising that he or she won't be at the next meeting because they will be out of town. At that point, it would not be difficult for someone to look up that person's property address in the Public Records and use that information for ill intentions.

The Florida shared ownership statutes unfortunately do not currently limit the use or distribution of videotapes by owners but the board can pass a rule limiting such use. However, it would be preferable if this loophole were closed statutorily by clarifying that videotapes made of association meetings cannot be posted in public forums. In the interim, there is certainly an argument to be made that prohibiting the posting of such videotapes in a public forum would constitute a reasonable board rule.

Wednesday, October 15, 2014

Cleanliness is next to Godliness-especially in a community association!

The fear of this century's next pandemic has increased with the recent media coverage of the growing spread of Ebola. Even without the risk of a highly contagious and fatal disease like this one, most of us already know that contact with crowds and multiple surfaces do increase our odds of becoming ill with any number of viruses. In some communities with retirement-age populations, even everyday illnesses can pose serious health risks. However, when was the last time your community association board discussed what can be done to keep your residents a little healthier?

Here are some basic ideas to consider:
  • In multifamily buildings, it makes sense to install hand sanitizer dispensers or wipes in high traffic areas such as the elevators and front desk. This is also true for homeowners' associations with recreational amenities like clubhouses.
  • Reach out to local healthcare providers and arrange for flu and pneumonia shots to be given inside the community as well as for mobile health screening units to make regular visits. Also, invite medical professionals as guest speakers to attend board and membership meetings and/or to distribute pamphlets and other wellbeing material.
  • Review your protocol for on-site association employees to consistently maintain cleanliness and hygiene standards both in terms of maintaining the association premises as well as expected personal employee hygiene and practices. A security guard constantly handling identification material from people entering the community should routinely clean his or her hands and the surrounding surfaces.
  • Consider adding recreational amenities and services to your community such as a weight room and trainers.

Naturally, for communities who do not wish to fit the aphorism of "no good deed going unpunished", the proper release forms should be obtained from owners for some of the foregoing activities. So, why should your community care about these kinds of preventative health measures?

The most obvious answer to that question is that this community is your home and you either live there with your family or your family and friends visit you there. Your staff's health should be of importance not only because it is tied to productivity but because you care about them. Lastly, the epitome of neighborliness is looking out for each other and one of the best ways to do that is to employ best practices when it comes to common health concerns.

Monday, October 13, 2014

How can your attorney help build your community's brand?



My last blog discussed the importance of building a brand for your community association. Many of you may have agreed with the concept but struggled with the idea of how to achieve such branding for your community.

The obvious people to assist you in this endeavor would be a Social Media specialist, website guru and a graphic artist. However, you may be surprised to learn that an experienced and knowledgeable community association lawyer may be your very best asset in terms of establishing and safeguarding your community's unique brand in the marketplace.

Let's look first at the branding for a typical retirement community.  In order to promote that brand, it would be helpful if there exists an active social structure with abundant recreational activities.  Your association attorney could help create that infrastructure with recommendations for various standing committees, committee structures, Board resolutions creating same, as well as policies and best practices for members of those committees.


As far as fiscal issues are concerned, is your community perceived as doing things as cheaply as possible or as one which spends wisely and delivers value for the assessment dollar?  My law firm, Becker & Poliakoff, is one of the founders of the Communities of Excellence program which spotlights Florida communities and managers who "get it right".  Many of the communities who receive awards for innovation, 

Are your community's rules too loose or too restrictive or your governing documents out of date?  We can look them over for drafting, legality and whether they actually accomplish your goals and bring them up to date with the law.

Are your dispute resolution processes civil and fair or rigid and heavy handed?  We can help set up templates for demand/notice letters and resolutions for fines and suspensions.

How do approach communication at board meetings, between board meetings, between board members, etc.?  Nothing does more to set the tone in the community than open and transparent operations, and that requires a commitment to communication.

Sunday, October 5, 2014

Does your condominium, cooperative or HOA board know if and when it is appropriate to grant a hardship exemption?

I am often asked by boards for whom I am rewriting or amending governing documents to include the right to grant hardship exemptions for a variety of use restrictions. Typically, boards want the leeway to grant exceptions when it comes to leasing or selling units, altering units  or limited common elements, performing maintenance and allowing certain types of architectural changes or improvements.

What many boards fail to understand is that any time an exemption or exception is granted, they are creating a precedent which may render their restrictions unenforceable in the future.

If there is no mention in the governing documents that a board has the right to grant an exemption then a board should not even contemplate doing so.

If the documents do provide such authority, a board still needs to discuss with legal counsel what the pros and cons are when it comes to exercising that right. Often this right to grant an exemption is tied to the perception that the owner is experiencing a hardship of one sort or another which can be a highly subjective matter.

A classic example of a situation where a hardship exemption might be equitable would be when an owner's tenant dies two weeks into a lease term in a community which restricts leasing to only one time in any calendar year. A board may very well feel that the intent of the restriction to keep the community safe from transient rentals will not be accomplished by applying the restriction under those circumstances.

Boards get into very murky waters when the hardship exemption is being granted to a fellow board member or an owner who is seen as a "friend of the board".

The better course of action when it comes to granting hardship exemptions is to clearly identify in your documents which situations would be eligible for such exemptions.

For example, in terms of leasing and sales restrictions, you might want to clarify that the following situations are eligible for an exemption:

-adding a family member to the deed for estate planning purposes
-heirs taking title to a unit
-death of a tenant within a certain time period after signing the lease
-abandonment of the unit by the tenant within a certain time after signing the lease
-a casualty event rendering the property uninhabitable for a time

These types of exemptions should be identified for other use restrictions and your governing documents amended to take the guesswork out of what does and does not qualify for a hardship exemption.