Tuesday, April 3, 2018

Mental Health Issues in a Community Association Context

Over the years, I've met thousands of people living in shared ownership communities and without fail, at least one person in every community questions the mental health of someone in their community. Sometimes the suspect serves on the board, other times it is the person living next door, and other times it is simply a resident who behaves in an unusual or offensive manner.

The National Alliance on Mental Illness (NAMI) confirms that approximately 1 in 5 adults in the U.S. (43.8 million or 18.5%) experiences mental illness in any given year.  NAMI further confirms that approximately 1 in 25 adults in the U.S. (9.8 million or 4.0%) experiences a serious mental illness in any given year that substantially interferes with or limits one or more major life activities.  In light of the current national discussion about mental health and its potential impact on public safety, it is worth examining how mental illness can impact the operations of your association and the quality of life of the residents of your community.

Dealing with mental illness is one of the most difficult issues confronting boards and managers in a shared ownership community.  Mental illness in community associations can manifest in varying forms, including elderly owners who are experiencing dementia, Alzheimer's or other significant mental decline, as well as residents of all ages who have illnesses such as bipolar disorder, manic depression and schizophrenia.  The overarching concern for boards is to prevent these residents from injuring themselves or others while dealing with the problem humanely.  Some residents suffering from mental illness present only a risk to themselves in the form of engaging in inappropriate behavior-in one of my communities it was an elderly man who forgot to wear clothing from time to time in the common areas. Other residents grappling with mental issues present real danger to their neighbors including threatening to assault others and creating dangerous conditions in the common ares. One board met with me to discuss an owner who was setting small fires on the catwalks.

Clients are often disheartened to learn that the legal intervention which can often successfully resolve parking, pets and other violations is limited in its ability to quickly resolve issues related to an association member's mental illness.  While it is possible to fine, suspend use rights or pursue alternative dispute resolution or litigation every time a violation is committed, those measures do not solve the underlying problem as the person committing the violations may not be able to stop his or her behavior.

The Florida Mental Health Act, commonly known as the Baker Act enacted in 1971, has not been terribly useful in combating the problem of mental health risks in shared ownership communities because the law is predicated on a very narrow definition of what constitutes imminent danger to one's self or to others.  It is a challenge to balance due process and liberty considerations with the need to protect the health and safety of the public.  In a shared ownership community, the often delicate threads of civility can unravel more quickly due to the pressures of living in close proximity to others.  The layers of government red tape offer little assistance and family members may be unavailable or unwilling to get involved. Some family members assume, wrongfully of course, that the association will provide some level of assistance to their family member and even view that as a less expensive alternative to proper assisted care or nursing facilities.  No association is licensed or otherwise qualified to provide such care and should not endeavor to do so.

There are a few things that can assist your attorney when dealing with the issue of mental illness in your community.

1.    Have up to date records for all residents which includes an emergency contact list.

2.    Discuss with association counsel whom you should contact on that list when a resident's decline becomes a serious concern.

3.    If monitoring a situation involving suspected mental illness, document any incidents by taking witness testimony as soon after an incident as possible.

4.    Contact local authorities if you suspect any possibility that the person experiencing mental issues poses a risk to himself or herself or others.

5.    Be aware of all state and local government and non-governmental agencies that provide assistance to persons who are experiencing mental illness and can no longer care for themselves.

The Florida Bar has created a 13-member special committee which has been tasked with examining existing mental health laws and civil commitment standards.  This committee is scheduled to conclude its work with a report and a proposed set of recommendations to present to the Florida Bar of Governors at its May, 2019 meeting. In the interim, mental health problems will continue to pose challenges for volunteer board members and managers in residential communities.

Monday, March 26, 2018

Summer Shut-Down Considerations for Seasonal Communities

If your community is a seasonal one that tends to thin out over the summer months, what rules or policies do you have in place to ensure that your association continues to operate smoothly and transparently over the summer months?

The less crowded summer months in some communities provide an optimal time to pursue important projects related to maintenance, capital improvements and updating your documents. In addition, there are concerns that need to be addressed given the fact that our 6-month hurricane season typically coincides with an increase in the number of absentee owners in your community.

Some of the items your board should consider as the summer approaches include:

1.      Rules Related to Absentee Owners.  These rules may require owners who leave their units vacant for many consecutive weeks or months to:

  • Keep their AC on at a certain level to avoid conditions which would encourage mold growth.
  • Shut off water to the unit to avoid leaks.
  • Engage a caretaker to check on the unit at regular intervals to ensure that the unit's condition is maintained and to afford access to the association for pest control and other services/inspections as needed.
  • Engage a caretaker to close up the unit in the advance of a storm which should include removing all items from the balcony or patio, putting up shutters or other storm protection and returning the unit to its pre-storm condition in a reasonable period of time after the storm passes.
  • Provide updated contact information which the association may use in case of an emergency.
2.      Capital Improvement Projects.  Large projects which impact the common areas, limited common elements and/or the units can be very difficult in a fully occupied building.  The summer months can provide an ideal time to undertake some of these projects when fewer residents are around. Painting, roof replacement, concrete restoration, pool deck renovations, ELSS and other Life Safety installations and lobby/corridor renovations are all projects which naturally involve varying degrees of impact to the quality of life for owners while they are underway. You can stage these projects with your contractors to take into account which units are vacant and when.

3.      Summer Projects.  The summer months often provide an optimal time for long-delayed projects such as a document rewrite. You can establish a Committee of residents who can work with your association attorney to discuss desired changes and the summer months afford you enough time to allow for review of several iterations of the language in order to prepare for a membership vote in the fall or winter months.

4.      Maintain Routines.   Even though the summer months may be quiet in your community, you must maintain a schedule of meetings and steady communication to your members. This is particularly important to ensure that the year-round residents continue to benefit from a fully functioning association. This means that monthly board meetings can and should continue. Out of town board members can attend by speaker phone or Skype.  While your summer meetings may briefer and content for your newsletter may be lighter during these months, maintaining consistent communication is what counts.

If all or some of your board members are gone for the summer, it is important that the Directors delineate duties amongst themselves and not overload the one or two board members who may be full-time residents. Even though summer months meant a break from responsibility for many of us when we were students, being a board member is a year-round job so take the proper steps needed to continue to serve your community even during the summer.

Monday, March 12, 2018

When construction occurs next door, your Board needs to get involved early!

It's likely that at some point during your community's lifespan, new construction will occur nearby and the impact on your residents will vary both short and long-term depending on the steps your Board takes early in the process. Sometimes new construction is welcomed enthusiastically by the members of an established community but more often than not, nearby construction strikes dread in the hearts and minds of many residents and board members who fear noise, disruption, debris, impaired views and incidental damage.

Communities facing the prospect of new construction next door should not go "on the attack" but should engage experienced counsel to help them navigate the construction process, set realistic expectations for their residents, reach agreement on protective measures to be provided by the contractor/developer, and receive compensation where appropriate.  If handled properly, the new construction can do much to enhance your community's value. If mishandled, you could wind up with new construction that encroaches on your land, damages your landscaping and exterior amenities, adversely impacts drainage, and, in severe cases, causes structural cracks in your buildings.

Naturally, the individuals or corporate entity driving the new construction want your community's support to sail through the governmental approval process. Boards who feel that their concerns and issues have been properly addressed by the developer next door will be much more likely to provide that support.

There are many factors to discuss and consider with the developer including the intensity of the proposed use, traffic, compatibility issues, construction management, easement agreements, rezoning, and other material issues.  Municipal Land Developer Codes usually require public participation so starting a dialogue early in the process affords your Board with an opportunity for your community and the developer to speak with a unified voice and to address major issues and concerns before being heard in a public hearing.  The developer will certainly want to address your concerns in private rather than face them at a public hearing.

Some common issues that should be addressed include:

  • Debris
  • Nuisance
  • Structural impact
  • Encroachments (both on their side and yours)
  • View Impairment
  • Buffering and noise mitigation measures
  • Trademark Infringement (depending on the name of the new community, shopping center, etc.)
  • Security
These kinds of negotiations may take six months to well over a year and will include your counsel attending and speaking at multiple Board meetings, Developer Town Halls, Municipal Public Hearings, researching City Zoning and Land Use, reviewing Mas6ter Plan Design guidelines, clarifying construction issues/timelines and negotiating the design to take into account view-lines, setbacks, traffic, loading, etc.

If you serve on an association board, you well know that directors are sometimes held responsible by some community members for issues completely outside your control. Don't let neighboring construction become another boiling point in your community.

If you currently have construction proposed or underway near your community and you wish to learn how to best protect your community's rights, please email me at dberger@beckerlawyers.com or call 954-364-6031.

Monday, February 12, 2018

Getting A Mulligan (Do-Over) for Your Board in 2018

Whether we call them mistakes, oversights, slip-ups or boo boos, we all make them including volunteer board members who are often hamstrung by both operational and time constraints.

The new year provides an optimal opportunity to correct items from 2017 or even earlier.  The law allows a corporation which has taken authorized actions but which were done 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 obtain the requisite membership approval.

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

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

4.    You were challenged when you attempted to enforce a rule or restriction because a prior board 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 association employee, levied a special assessment or adopted a budget, etc.) outside the scope of a duly noticed Board meeting and vote.

6.    Your members passed an amendment and you failed to record it or an amendment was prepared 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 approve of and ratify all prior changes, additions and modifications made by the Association to the Common Elements and Association property or any other action that required a membership vote which was not taken.

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

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

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

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

Monday, February 5, 2018

Improve Your Members' Chances of Casting a Successful Election Ballot

Every year, I attend many of my clients' annual meetings and elections and it is always disappointing when some members' election ballots must be discarded due to avoidable errors.

For Florida condominiums and HOAs who have adopted a "condominium style" election process, the election protocol that was implemented to discourage voter fraud can also be overly complicated for some members to follow.  The goal in any election is to facilitate the greatest voter participation while maintaining the integrity of the voting process.

Here are some ways you can educate 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 is owned by more than one person or is owned by a corporation or other business entity, make sure you have a voting certificate on file for each unit impacted by this requirement and, where possible, amend your documents so that units owned by more than one person or by husband and wife are exempt from a requirement that is better applied to only units owned by entities and trustees;

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

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

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

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

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

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

Friday, January 5, 2018

New Year's Resolutions for Your Board

Historians believe that the ancient Babylonians were the first people to make New Year's resolutions approximately 4,000 years ago. During a religious festival known as Akitu which lasted for a lengthy 12 days, the Babylonians crowned a new king or reaffirmed their loyalty to the reigning king. They also made promises (precursors to modern day resolutions) to their gods regarding the repayment of their debts and believed that if they kept these promises, the gods would bestow favors upon them but if they did not, doom would follow.

We are in the midst of election season for most community associations.  Either the members are deciding to reaffirm their support for an existing board or they have decided to elect a new board.  Particularly at this time of year, many sitting boards find themselves unaware of where they truly stand with their members including whether or not the members believe that the board has kept its promises or abandoned same.  It's best not to wait until year's end to gauge how your board's decisions and priorities are being viewed by the members who elected you.

Here then are some resolutions your board might want to consider for 2018:

1.    Allow time at every Board meeting for a good and welfare discussion to allow those members present to "vent".  Many times, it will be the same malcontents, but, occasionally, you will hear from members with concerns you didn't expect.  I can hear the groans now from some of you regarding having additional time at meetings but you will find that the more frequent your meetings, the fewer times those meetings devolve into chaos.  Some "troublemakers" may not be troublemakers at all but rather are simply people who are looking to be heard; the fewer opportunities they have to express themselves typically results in a blow-up when the rare meeting does occur.

2.    If your meetings have never been well-run, decide to handle them differently in 2018.  If you have someone who constantly interrupts the meeting and will not listen to reason, begin videotaping your meetings, as many people will behave differently if they know their conduct is being preserved for posterity (or as evidence).  If the disruptive people are truly threatening, hire an off-duty police officer to maintain order. Also, consider adopting reasonable rules regarding participation at meetings before you need to enforce them.

3.    If your community is professionally managed, re-read your management agreement to further your understanding of what your manager can and should be doing. Board members should be policy makers, not day to day managers.  For items on which neither the manager nor the Board has the requisite expertise, consult with experts such as your attorney, accountant, engineer, etc.

4.    Stop hiring anyone based solely on price. First of all, if it seems too good to be true, it usually is. More importantly, remember that there are often other factors that impact price and, most importantly, the value of the services you are receiving.  It is easy for boards to get duped by a low price tag but the true yardstick should be the quality of service your Board and members receive for their assessment dollars.

5.    Attend a Division-approved class to get educated and share and hear best practices with leaders of other communities.  Even if you do not need to be certified to serve on your Board in 2018 because you've previously been certified, attending at least one class each year helps you be a better Board member.

6.    Adopt policies that take advantage of available technologies to streamline your association operations, as well as a Code of Conduct for your Board. Some of the strife related to board member squabbles occurs because there are typically no set boundaries and guidelines as to what each board member should be doing.

It is inevitable that you cannot please everyone.  The greatest leaders in history had their detractors.  What you can control is how you approach the role of serving on the Board (please see my emphasis on the word "serving"), how you and your fellow Board members communicate and work together and how you set and relentlessly and efficiently pursue the best interests of the community you serve.

Monday, December 4, 2017

In Defense of HOAs

HOAs certainly have their share of detractors.  Many HOAs operate a community of detached, single family homes which begs the question:  it's my house; it's my yard; other than the local building code, why should my HOA be able to restrict what I can do with them?  Does it really matter how I maintain my yard? Shouldn't the choice of exterior paint color be left up to me rather than the HOA board or an architectural control committee?  Shouldn't I be able to park whatever vehicle I want and park it wherever I want on my lot?  The answer to those questions depends on one's expectations and, unfortunately, sometimes people who prefer few or no restrictions find themselves living in communities with extensive rules and regulations.

While some people are quick to criticize HOAs and even call for the dismantling of their regulatory framework, there are significant benefits that a mandatory homeowners' association can provide.

In my hometown of Plantation, Florida, an ongoing controversy exists in terms of a holiday light display on a residential cul de sac which is not part of a mandatory community association. When I first visited the attraction, I marveled at the grand scale of the display: a large Ferris wheel in the middle of the lawn with adorable teddy bear passengers, an outdoor movie screen playing holiday classics, thousands upon thousands of lights and law decorations and masses of people milling around and gawking like me.  My second thought was "I really would not want to live on this street."

This nationally recognized holiday display takes place on an otherwise quiet cul de sac with fewer than a dozen homes and only one street that provides access to the residents and their guests and visitors.  The push and pull between the owners who host the display and their neighbors has, not surprisingly, played out in the media.  Several of the neighbors have been vociferous about the negative impact their neighbor's activity is having on them.  They claim that the lights, noise, garbage left on their lawns by visitors, weeks of set-up and removal of the display as well as the pedestrian and vehicular traffic over the span of many weeks all contribute to the diminution in their quiet enjoyment of their homes and their ability to celebrate the holidays on their terms.  They also fear that the display could hinder the ability of emergency vehicles to render assistance in their neighborhood while the display's visitors are clogging the streets.

There is little doubt that a holiday display on this scale would not be permitted in a mandatory homeowners' association and this is only one example of activity than an HOA could and arguably should regulate.  Every set of Association governing documents contains a clause that prohibits activity that interferes with the peaceful possession and enjoyment of the other homes in the community.   In this case, the governing documents could be amended to add specific guidelines regarding holiday displays and exterior alterations to a residence.  No HOA documents would permit any type of display which could be classified as a nuisance or which would bring a nightly influx of non-residents into he community.

A violation of the governing documents such as this holiday display would have resulted in fines and, if those fines exceeded $1,000, they could have become  lien on the property and possibly foreclosed.  Whether you believe that a massive holiday display in a residential area is a nuisance or a blessing, the tools available to a private residential community enforcing its private restrictions are undeniable and they can and should work to the benefit of other lot owners.

Detractors of mandatory HOAs may argue that the local city or county can regulate the use of residential property and enforce Code violations.  Well, that may be true in theory but in practice the local authority sets minimum standards, whereas your community may want higher standards of aesthetics.  Also, the local authority is often reluctant to become embroiled in these kinds of situations and, even when they do take action, they may not be as successful as an HOA would.  In the case at hand, the City of Plantation sued the display's owners and lost.  The City filed a nuisance lawsuit based on alleged traffic issues and the judge ruled against the City. Curiously, the nuisance impact on the neighbors was not addressed in that lawsuit.  In the end, this case illustrates how a private community could more effectively enforce private restrictions as opposed to relying on municipal Code enforcement.

What other advantages can an HOA provide?  Residents in an HOA benefit from the services and amenities that sharing expenses can provide, such as security services, recreational amenities like pools, exercise rooms, tennis courts and more. Lastly, highly functioning HOAs can foster a strong neighborhood connection.  In the case of the besieged cul de sac, that neighborly connection arose not because things were going well but because they were going very wrong.