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.

Monday, September 22, 2014

Does your board undertake "Due Diligence"?


Directors are often told they should "do their due diligence" before making certain decisions on behalf of their associations. How many people actually understand what steps are needed to fulfill that directive?
 
"Due diligence" is defined as an investigation of a business or person prior to signing a contract, or an act with a certain standard of care.
 
The foregoing definition, however, might not be enough for some boards or managers to map out a plan. The steps needed to diligently assess something or someone will change depending on the circumstances but what follows are some basic methods to undertake due diligence.
 
1.      When evaluating a potential association hire, using a thorough application, holding a personal interview, making calls to former employers, requiring a skills test and perhaps even a personality test can all give the board a better picture of the person they may be hiring. Naturally, your board will want to pick and choose from this list depending on the type of employee you are hiring. It is also important that the person with whom the job candidate will be interacting most closely post-hire has some contact during the evaluation process to ensure a productive working environment.
 
2.      When hiring a professional advisor such as an attorney, accountant, manager, engineer or architect, you will want to confirm that the candidate has the skills and resources your community needs. For example, if you are considering complicated litigation, you should hire a firm that specializes in your specific problem or issue rather than a firm that may only occasionally handle that type of litigation. You will also want a firm that has the resources to continue a protracted fight. When considering any professional advisor, you will want to ensure the individual or company has a good reputation in the industry, a proven track record and verifiable credentials.  Naturally, it is better to hear great things about your candidate from others as opposed to hearing them only from the candidate.  Check out your candidate online. Does the firm or individual have a presence? Can you see what resources they possess? Beware though as not every professional writes his or her own material; sometimes those blogs, papers and summaries are ghostwritten by PR firms. Be blunt and ask your candidate whether or not their written materials are their own. While there is nothing wrong with a targeted marketing campaign, if a professional creates a misleading image that his or her company is larger or more successful than it is, beware. Ask how many employees actually work there and see if their website backs up their claims. Ask to see documentation to verify any success stories. Google can also be a useful tool to see what others are saying about this individual or company.
 
3.      When hiring a contractor to perform any type of work in the community, be sure to confirm that the contractor's commercial license is active, that the license is the type you need for the work you are requesting and investigate any complaint history and resolution of those complaints with both the State and the Better Business Bureau.  Checking references with associations who previously used your contractor candidate for the type of project you are considering is also essential to your due diligence.
 
While there are no guarantees that a properly vetted candidate will go on to perform good things for your community, an improperly vetted candidate can spell disaster. Boards who understand the need to perform due diligence tend to avoid costly problems down the road.