Wednesday, August 10, 2016

Zika Virus and Your Community Association

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




Sunday, August 7, 2016

Pokemon GO.... Away! Mobile game can spell headaches for private residential communities.

After writing this blog for well over a decade, I often think that I have covered every conceivable topic which can impact shared ownership communities. Almost inevitably, just when I start thinking this is the case something new crops up like drones or, more recently, locating, battling and capturing virtual creatures called Pokemon.
Recently a condominium board called me to discuss a new security risk in their community. When I inquired if the risk pertained to infrastructure deficiencies (inadequate lighting at night, overgrown landscaping, etc.) or recent criminal activity such as vandalism or theft I heard something entirely new: "there is a PokeStop just outside the entrance to our community." 
I had a vague familiarity with what appears to be the biggest fad of Summer, 2016 as several of my friends and relatives are enthusiastic participants in this augmented reality game played on mobile devices.  Apparently, participants find a variety of these creatures and other game-related goodies at locations called PokeStops which have been assigned this status by the game's maker, Niantic. 
Unfortunately for my client in question, the entrance to their community had been randomly listed as a PokeStop which meant that over the course of the prior week, hundreds of people were milling outside their entrance looking at their phones and not the incoming or outgoing traffic from the community.  Needless to say, this situation presented a real concern for the community and its inhabitants. In addition to creating possible security risks given that most players are entranced by their virtual surroundings and not their physical location when at a PokeStop or Gym (a place where virtual battles occur) there are also just locations that do not lend themselves to a whimsical game like Pokemon Go; for example, the National Holocaust Museum would not seem to be the best fit for this kind of activity.
A little research revealed that it is possible to request that a PokeStop be removed. However, it is also possible to request a specific PokeStop location. For some residents intent on creating mayhem in a community, this might be an innovative new way to rile up the neighborhood. For those of you like me who never thought you would have to discuss virtual creatures in the context of community security, think again and check out whether or not you might have one of these locations near you.  To remove a PokeStop that might be impacting your community, you can visit the Niantic site here: https://nowloading.co/posts/4000106


Thursday, July 28, 2016

The Fuss about Florida's Fire Sprinkler Opt Out Deadline

The Division of Florida Condominiums, Timeshares and Mobile Homes ("Division") has recently been quoted in several media articles advising that all multifamily buildings in Florida, regardless of height, must install sprinklers unless they opt out prior to the December 31, 2016 deadline. In the aftermath of that revelation, some Florida attorneys are advising communities that they all must take an opt out vote prior to the December 31, 2016 deadline or they will be required to begin installing a full sprinkler system shortly thereafter.


So what's the problem?

For starters, neither the condominium law nor the cooperative law impose retrofitting requirements nor do Chapters 718 or 719 of the Florida Statutes confer jurisdiction on the Division to interpret or enforce life safety laws. That  function rests with the Fire Marshal. The requirement for sprinkler retrofitting arises from Chapter 633 of the Florida Statutes not from either Chapter 718 or 719 where the opt out rights are provided. Chapter 633 of the Florida Statutes incorporates the National Fire Protection Association (NFPA) standards. The NFPA requires "high rise" buildings (which are defined as buildings in excess of 75 feet) to retrofit with sprinklers. While there may be other circumstances where buildings less than 75 feet must be equipped with fire sprinklers, there is no blanket requirement that all condominiums and cooperatives in the State of Florida, regardless of height or occupancy or date of construction be equipped with fire sprinklers.

Why does the Division and those following their lead believe otherwise?

In 2010 Chapters 718 and 719 were amended to remove the word "high rise" from the original "opt out law" which was enacted in 2003. That change occurred through SB 1222/SB 1196 which was sponsored by Rep. Ellyn Bogdanoff and Senator Jeremy Ring. It is likely that the Division believes that the removal of the reference to the "high rise buildings" signified a legislative intent to create a retrofitting requirement for all condominium and cooperative buildings through the condominium statute. As discussed above, that logic is not supported by the statutes or the NFPA standards. Moreover, Senator Ring has confirmed that the legislative intent behind the 2010 change was not to impose a blanket retrofitting requirement on all multifamily buildings in Florida but rather was to remove the reference to building height since the shared ownership statutes were not the proper place to impose physical requirements relative to life safety standards.




What does this mean for your multifamily building? 

After Jan 1, 1994, all new buildings 3 stories and above had to have fire sprinklers. In addition, buildings that are treated as public lodging establishments, regardless of height, have life safety obligations which include sprinkler installation. Other than those exceptions, if your building is not a high-rise of 75 feet or higher and you are confused about whether or not you should take a sprinkler opt out vote prior to the 12/31/16 deadline you need to discuss with your association attorney (who is hopefully experienced in these matters) whether or not your local government is requiring low and mid-rise buildings to retrofit with sprinklers due to a local code or ordinance and what the costs and repercussions of taking and not taking that opt out vote are.

Are there any repercussions to taking or not taking this vote?

For high-rises, the failure to take the opt out vote prior to the December 31, 2016 deadline is clearly spelled out in the statutes. Those high-rises who fail to opt out by the deadline must initiate an application for a building permit for the required installation with the local government having jurisdiction demonstrating that the association will install a full sprinkler system by December 31, 2019.

For buildings other than high-rises, the failure to take the vote may have no repercussions at all if they are not otherwise required by local ordinance or code to install sprinklers or it might have some preventative value should a local authority try to impose a sprinkler requirement on them. Your low and mid-rise building must weigh the costs and labor to take the vote against the preventative value or no value in doing so. It is also important to remember that once an opt out vote is taken that the association doing so must take the following steps:


  • Within 30 days after the association’s opt-out vote, notice of the results of the opt-out vote must be mailed or hand delivered to all unit owners. Evidence of compliance with this notice requirement must be made by affidavit executed by the person providing the notice and filed among the official records of the association.
  • After notice of an opt out vote is provided to each owner, a copy must be provided by the current owner to a new owner before closing and by a unit owner to a renter before signing a lease.
  • As part of the information collected annually from condominiums, the division shall require condominium associations to report the membership vote and recording of a certificate under this subsection and, if retrofitting has been undertaken, the per-unit cost of such work. The division shall annually report to the Division of State Fire Marshal of the Department of Financial Services the number of condominiums that have elected to forego retrofitting.
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

How to Prevent an "Act of God" from Derailing Your Community.


Ask a contractor or vendor about what will happen to their services and your community in the event of a disaster or emergency and they will likely point you towards a clause in their contract entitled, Force Majeure.

A typical force majeure clause reads as follows:

"X shall not be liable for any failure or delay in performance of this Agreement, in whole or in part, where such failure or delay is caused by circumstances beyond X's reasonable control, including but not limited to acts of God, severe weather, fire, terrorism, vandalism or civil riots, war, civil disturbance, labor activity or strike, court order or any other cause outside X's exclusive and direct control."

While your contractor certainly cannot control the weather or any of the other items listed above, he or she can control what they are willing to do to help your community recover and how much it will cost you.  Unless you have properly negotiated your contract, most vendors' proposals contain language which is designed to protect them from liability, from having to perform services and/or from incurring penalties in the aftermath of a disaster. However, if you have properly negotiated your contracts, language can be added which provides that your association is not responsible to continue making payments for a project or services which have temporarily ceased due to an emergency situation. In the absence of such protective language you may find yourself having to pay for services which are not being delivered.

For services like security, landscaping, pool and grounds maintenance, your association needs vendor contracts which clearly specify the services to be performed prior to a disaster and in the aftermath of same and at what rates. Moreover, for an essential service like security and/or an important repair project, your association should address how quickly your community can expect to be protected post disaster. Naturally, you also want to pay a fair price for such services and not a price which has been inflated as a result of the emergency so pricing needs to spelled out in the contract.

The following are some questions you need to start asking when negotiating your contracts:
  • How many guards will return to the community post disaster, when and at what rates?
  • Will our manager be working onsite post disaster or remotely?
  • When will the landscaping company arrive to remove dangerous storm debris?
  • Who will help document the community properly in anticipation of a possible insurance claim?

Florida's six-month hurricane season started on June 1st. In addition to powerful windstorms, residential communities are also vulnerable to fires, floods, tornadoes and hailstorms all of which can fall under the category of an "act of God". Moreover, we now have the very real threats of civil disturbances/riots and terrorism for which volunteer boards should start preparing.

Sunday, May 22, 2016

Could defective pipes be the cause of unexplained water leaks in your building?

Unexplained water leaks are an unfortunate fact of life for far too many high-rise communities.  While your board and members may feel there is nothing to be done other than regular repairs and perhaps a prayer for good luck, the fact is that buildings constructed in Florida between the years 2003-2010 may contain defective pipes and, if your building received a Certificate of Occupancy between 2006 and 2010, you may still have a cause of action to resolve the problem once and for all.
Allied, a division of Tyco, manufactured metal vertical water risers that were joined to horizontal runs of CPVC (Chlorinated Polyvinyl Chloride) pipe in many high-rise buildings. CPVC is a thermoplastic which is produced by chlorinating polyvinyl resin and is used most often in hot and cold water pipes. Often it is the CPVC pipes that service units off of the main risers and into units. Most frequently, these are fire sprinkler pipes.
Allied (or ABF piping) was used in buildings during the time period of 2003 through a portion of 2010.  When used together, the CPVC pipe deteriorates at a more rapid pace than expected which, in turn, causes leaks.  At some point, Allied became aware that there was a problem with the incompatibility between the ABF and the CPVC pipes and stopped using this combination in early 2010.
If your building was constructed between 2003-2010 and has this combination of ABF and metal piping and CPVC piping, the failure will ultimately occur even if it has not yet happened. While you do not need to be a high-rise to have this combination (it has been discovered in HOA clubhouses and low to mid-rise condominiums and cooperatives) it is much more prevalent in high-rise structures.
My law firm, Becker & Poliakoff, is investigating and pursuing these claims on behalf of our clients throughout Florida and elsewhere in the U.S.
How can you tell if you have this combination?
Often, you can confirm if you have the defective pipe combination by simply observing the pipes in locations where such observation is readily accessible. You will see the ABF or Allied markings on the pipes and should be able to see the joinder of metal pipes to plastic or CPVC piping. If not, our experts (some from MIT and others who are local engineers) can visit your community to readily determine if the problem exists in your building.
Who is responsible for this problem?
There are two classes of claims i) class action claims against the manufacturers of the pipe and ii) claims against developers and contractors. If the Board does not pursue these parties, then ultimately the Board or the members will be responsible to make repairs as the leaks surface over time.
How long do you have to address this problem?
The statute of repose, which is the longest time frame you have to resolve the issue, is ten (10) years from the completion of your building.
For more information on this defective pipe problem and how to solve it, please contact me at defectivepiping@bplegal.com or visit our website at http://www.DefectivePiping.com.

Wednesday, May 11, 2016

Why you need to listen to the dissenting voices in your Community

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.