Sunday, May 10, 2015

Five Questions You Need to Ask Yourself Before Serving on Your Association's Board

Before agreeing to serve on your community association's Board of Directors, please do yourself and everyone else a favor and run through these five questions first.

1. Do I have time to serve on the Board?

Running and being elected to your community's board of directors can be an exciting experience as it is an affirmation of sorts. However, once the election is over there is that little matter of actually attending meetings and handling the work that may be delegated to directors. In self-managed communities, your successful service on the Board is likely to be even more dependent upon your ability to carry your share of the workload. If you have certain circumstances in your life which would prevent you from being an active and responsible director, you should reconsider your decision to serve..

2. Can I make unpopular decisions?

Being a community association director should not be a popularity contest. As a director, you will be asked to make decisions which can upset your neighbors. These decisions can range from having to lien and foreclose on the nicest guy in the community as well as passing a costly special assessment to make necessary roof repairs. You cannot play favorites and you should not abstain from casting your vote because you want to be liked. Also, trying to "fly under the radar" by allowing a dominant director or directors to make all the decisions or abdicating control entirely to a manager is a choice that will will likely come back to haunt you.

If you cannot bear the thought of making someone unhappy (including yourself), then serving on the Board might not be for you. 

3. Do I have an ax to grind with anyone?

Do you see serving on the Board as an opportunity to help your community or is it a chance to use the position with a less than noble goal in mind?  While there is nothing wrong with new Board members joining with a goal towards correcting a former board's mistakes, there should be concern if the battle is a more personal one with a neighbor or vendor. Board service requires a neutral stance where you are making decisions based on the overall good of the membership and not for personal gain.

Be honest with yourself about your intentions for serving on the board because if they aren't good, you won't fool anyone for long.

4. Am I willing to read and comply with the governing documents?

I have been reading governing documents for two decades and I have yet to come across a set which would qualify as a thriller. When you include amendments passed over many years, some governing documents can be comprised of hundreds of pages of legalese so reading them is not on most people's "Wish List". Still, if you agree to serve on your community's Board, you have an obligation to read those documents. No, you do not have to perfectly understand them-that is what your association attorney is there to explain. You do, however, have to be prepared to comply with them along with everyone else. Also, attending a class each year will not only make you a better director, it might make you happier serving on the board.

5. Do I have skills that would assist the community?

Despite what some owners might think, association directors are not tied to a standard of perfection. These volunteers are human and they will make mistakes. Community association directors are tied to a reasonableness standard so one of the greatest skills you can bring to your Board of Directors is that of being a reasonable person willing to listen with an open mind, eager to seek assistance from experts when an issue is beyond your skill set and mindful of the tone and content you use when communicating with members, fellow directors and vendors.

I served on my HOA Board for a two-year term and during that time we undertook some major community projects, we made a few mistakes and I found myself on the losing end of more than one vote. I applaud everyone who volunteers and serves on a community association board with the right intentions. It is not an easy job but it does give you a different perspective from that point forward!

Thursday, April 30, 2015

Is it time for Local and State Governments to do some of the heavy lifting for community associations when it comes to secondhand smoke?


Has your condominium or cooperative board been contacted by a member who has been impacted by a neighbor's nicotine habit? Has your Board struggled to understand what your obligations are and how much it will cost you to find out?

By defining secondhand smoke as a nuisance, local and state governments can do the heavy lifting for condominiums and cooperatives who are struggling with this issue. 

Some of the actions taken by the following California cities to address the topic of smoking in rental apartments could be modified by our Florida legislators to address the issue of excessive secondhand smoke in our State's condominium and cooperative communities.


  • In 2006, the City of Dublin declared secondhand smoke to be a nuisance.  One Dublin couple won a restraining order against a downstairs neighbor whose smoke invaded their unit through shared ventilation and windows – the judge issuing the order cited the nuisance provision as well as a year’s worth of email exchanges over the situation.  Dublin eventually adopted a 75% non-smoking units law in 2013. 

  • In 2009, the City of Richmond  adopted a law banning smoking in all multi-unit housing of two units or more which law became effective Jan. 2011.  Richmond has a special hybrid police/code enforcement team of sworn officers called the Regulatory Unit which enforces the non-criminal code violation calls.  When a tenant calls about a smoking neighbor, an officer will go the unit and take a complaint.  The officer will attempt to speak with the property manager/owner and will ask to see a copy of the smoke-free lease that each tenant should have signed as of Jan. 2011.  The officer also checks the property to make sure that the required signage is up and asks to see the letter that landlords must send out to tenants to inform and remind them of the law.   If time permits, the officer will also attempt to contact the alleged violator.  If that person is home and answers the door, the officer will talk with him/her about the law and the need to comply.  The officer informs the complainant to advise the Regulatory Unit if the problem persists.  If the owner/property manager is not using the proper lease, sample letter and/or signage, then he or she is asked to take remedial steps, with the officer checking back in one month’s time to confirm compliance.  Violation of the ordinance is considered a nuisance under the city’s Code which means that the city may, if  it so chooses, levy a fine against the property owner for each day that the violation continues.  Having a uniformed officer take a police report seems to have done the trick in terms of discouraging smokers from continued violations as no fines have been levied to date. 



  • At the end of 2013, the City of Berkeley, adopted a law which took effect May 1, 2014 requiring all leases issued after May 1, 2014 to be non-smoking.  Existing lease holders were asked by landlords if they would be willing to voluntarily sign a new smokefree lease addendum and many did agree.  Nonetheless, as of May 1, 2014, it was illegal to smoke inside apartment and condominium units in Berkeley.    Since this law's inception, only one person has been cited.  Some Berkeley landlords are also attempting to check on the status of these complaints as proof of nuisance behavior which can be used in an eviction action.


In addition to California, Utah defined secondhand smoke in 1997 to be a nuisance as it pertains to multi-unit housing. Some states classify secondhand smoke as a nuisance-is it time for Florida to follow suit?




Sunday, April 5, 2015

How important is it to have a title on your Association's Board of Directors?



In the for-profit corporate world, titles are important but they do not make someone a leader simply by virtue of having one.  However, in the not-for-profit community association world, a title can endow its holder with an inordinate amount of power to make decisions on behalf of a lot of people if the rest of the board becomes cowed, lazy or indifferent.

There are usually two types of directors serving on condominium, cooperative and HOA boards: those who strive to become a board officer and, specifically the President, and those who refuse to accept such responsibility. 

For the former group, just what is the appeal of becoming the board president?

  • The governing documents typically outline each officer's duties and for Board President, that can include creating the agenda for meetings and chairing those meetings.
  • Any director even those who are not officers can sign a contract if given actual authority to do so via Board Resolution. However, most vendors insist on getting their contracts signed by an officer of the Board and specifically the President. The President has what is called apparent authority to sign contracts meaning that to the outside world, he or she is presumed to have such authority.
  • The myth persists that a Board president can break ties. This is only true if the President of your Board also serves as the Vice President of the U.S. and is voting to break a tie in the U.S. Senate.
  • There is just something about the title President which puts a little spring in some people's step.

When I meet initially with boards who are experiencing some level of dysfunction, the complaint I hear most often is that the board president is making unilateral decisions that are not in the community's best interests. While a rogue president cannot be removed from the board entirely (only the members can vote to recall a director), any Board officer can be removed by the vote (which can be cast by secret ballot) of the board members alone. Removing the president's title does two things: it removes his or her apparent authority as well as relinquishes him or her of the duties of the office set forth in the governing documents. Such decisive action also sends a strong message that the board insists on operating as a cohesive entity.

In highly functioning communities, the title of president should not present any particular worries or concerns because those boards are voting on items and taking action as a fully-informed group. If you are asked to serve as a president in one of these communities, accepting the position should not be a cause for sleepless nights.

Lastly, just remember, you can run but you can't hide. If you serve on your Board and you have abdicated all responsibility and decision-making to your fellow director or directors, you can still be sued if he, she or they make the wrong choices.

Sunday, March 29, 2015

What is your community's most outlandish emotional support animal request?



I am going to preface this blog post by stating that there are individuals who struggle with emotional disabilities and who can legitimately benefit from the use of an emotional support animal.

However, this blog post is not about those people.

Unfortunately, those of us who live in shared ownership communities, serve on their boards or represent these types of communities have all seen our share of abuse in this area. The legal pendulum seems to have swung very far in the direction of protecting the rights of people who want pets in "no pet" communities regardless if those people have fraudulently framed their requests as being a necessity for their emotional well-being. Meanwhile, the rights of people who specifically purchased a home in a pet-restricted community due to allergies and other health issues, fears/phobias or simply preference are not protected by the government with the same fervor and the board is often prevented from protecting their rights..

I have seen the following animals requested for emotional support:

  • Dogs
  • Cats
  • Birds
  • Monkeys
  • Mice
  • Snakes and other reptiles
  • Pigs
  • Miniature Horses
  • Ferrets

It is important to remember that even though the local Fair Housing investigators continue to remove most of an association's ability to properly evaluate an emotional support animal request, the ultimate accommodation still must be reasonable in nature. It is imperative that your board not go it alone when it comes to receiving and responding to one of these requests. Speak to an attorney who is well versed in these issues and who can provide you with the greatest likelihood of successfully navigating this minefield.

One owner in a "no pet" community claimed his girlfriend needed to bring her emotional support animal with her when she came to visit him for their occasional conjugal visits. The association fought this request and, with our Firm's help, prevailed. Another owner insisted that the dog needed by her late husband for depression is now needed by her since she is depressed in the aftermath of her spouse's death; that case is pending. Yet another owner requested a single parrot for his emotional issues and then decided he needed two more. He started bringing the parrots with him to the pool (sauntering around like a pirate according to some unhappy neighbors) and when the parrots started to attack others at the pool, all of the birds were removed since they were deemed to no longer be a reasonable accommodation.

So what is your community's most outlandish emotional support animal request and how did you handle it? 

To attend our class on emotional support and service animal requests, please visit www.bplegal.com/events.

Sunday, March 22, 2015

Why do some association boards decide to "go it alone"

I often wonder what variables factor into an association board's decision to forego professional management and an annual retainer relationship with a law firm in favor of "going it alone".

Naturally, money is top of mind for most directors when deciding whether to use professionals such as managers and lawyers for their community. However, financial concerns should not be the only topic of discussion during this debate. In addition to the costs involved. boards should ask themselves the following questions when deciding if they wish to be self-managed:


  • Are we comfortable with handling requests from owners and pursuing covenant violations directly as opposed to having a "cushion" provided by our manager?
  • Do we have the time, patience and expertise to follow through on the daily operations of our community?
  • Do we have the time, patience and expertise to follow through when something out of the ordinary arises like a fire, hurricane or other disaster?
  • Are other communities of our size and type typically managed professionally or self-managed?
I have lived in a Broward County homeowners' association for more than twenty years and our community has always been self-managed. Our community could really go either way. We are relatively small (98 homes) and do not have a plethora of common areas although we have enough features (private roads, green parks, gazebo, guardhouse, perimeter wall and gate) that do require consistent maintenance and oversight. Someone buying in our community may very well expect it to be professionally managed but would likely not be shocked to learn it isn't.

On the other hand, a high-rise condominium on the water would present a host of operational and maintenance challenges which might prove far too taxing for the average volunteer board of directors no matter how enticing the cost savings may be. This is when the old adage "penny wise and dollar foolish" comes into play.

As for boards who decide to forego legal assistance on issues like covenant enforcement, document amendments, contracts, insurance claims, hiring and firing decisions, land acquisitions, easements, recalls and more, the questions I would urge them to ask would be:
  • Is our D&O coverage current and high enough and do our actions in this matter exclude coverage?
  • Will we be able to hire the attorney(s) we want when we want them for this matter?
  • Are we willing to learn a lesson the hard way?
Sometimes boards relax into patterns and deciding to forego useful professional assistance can be a bad one. 


Friday, March 6, 2015

Words Matter: Is your Board precise with its terminology?


When you go to your doctor, it is helpful if you can accurately describe your symptoms so he or she can properly diagnose the problem. The same holds true when a volunteer board of directors meets with its legal counsel.

Boards can inadvertently make a legal diagnosis more difficult when describing a problem by not being concise with certain terminology.

For example, many directors will refer to a certain provisions being in their "Bylaws" as if it was a catchall term encompassing all of their documents. In fact, the Bylaws are one of several governing documents which comprise the foundation for association operations. In a condominium association, you will have a Declaration of Condominium, Articles of Incorporation and Bylaws. In a cooperative association, you will find Bylaws and a Proprietary Lease but no declaration. In a homeowners' association, your community will be governed by a Declaration of Covenants and Use Restrictions as well as a Bylaws and Articles of Incorporation. All of the foregoing shared ownership communities will also typically have separate rules and regulations.

When your board refers to your "Bylaws", your legal counsel is already picturing a certain document depending on your community type and it may not be the document to which you are actually referring.

Another area where directors can sometimes mislead association counsel and others is by referring to their community as a "homeowners' association" when, in fact, it is actually a condominium or cooperative association. True, every community is comprised of homeowners but an HOA is a very different entity than a condominium, timeshare, mobile home or cooperative community. When referring to your community either internally to other directors and members or to professional advisors and vendors, please use the correct term.

Lastly, some directors (and association members) still refer to Florida associations being subject to "the Sunshine law". While each of Florida's shared ownership statutes do require a certain level of transparency in association operations, Florida's Sunshine Law (Chapter 286, F.S.) pertains to governmental entities and not to private residential communities so saying that your association is "subject to the Sunshine law" is not technically correct.

Remember, being precise (and accurate) in the terms you use to describe your community and its issues can only help shorten the time it takes to diagnose and resolve those issues.

Tuesday, February 3, 2015

Email Intelligence-does your Board possess it?


In my last blog entry, I discussed the considerable downside to sending a resignation via email. Today, I am discussing the pros and cons of board members and managers using email for other purposes and how to craft a sound email policy for your association.
 
Board members, managers and association residents are no different from everyone else you know inasmuch as they are all heavily reliant upon electronic means to communicate. Phone conversations and, even more rarely, in-person conversations do still occur but not nearly as frequently as emails and text messages.
 
Whether you are a member of an association board of directors or are a manager assisting such a community, it is important to understand that (a) everything you put in writing can and will be used against you and (b) some topics and situations are not well suited to an email response.
 
Whenever I teach a Board Certification or other educational course, I always ask the directors and managers in attendance to raise their hands if their community has a comprehensive email policy in place. Surprisingly, not a single hand is raised.  Deciding in advance how your Board will handle emails from residents, professional advisers and vendors is not only advisable, it is necessary.
 
Here are some questions you need to ask yourselves and then craft the appropriate email policy with your association attorney's assistance to ensure it complies with both your documents and applicable law.
 
  •         If a resident emails the entire board with a complaint, who should respond? Without protocol in place, chances are everyone will respond (and sometimes with different answers and conflicting information) or no one will respond as a result of assuming someone else did.
  •         If a resident's email is akin to a rant with no specific purpose or request, how should it be answered, if at all? Florida law requires certified inquiries and written requests to inspect the association's books and records to be answered within a certain time period. However, nothing requires boards to respond to venomous email rants. Decide as a board how you wish to handle these kinds of communications. Some boards choose to use a simple auto response such a-"Thank you for your email. Your input will be reviewed and should a response be necessary, you will receive one."
  •         Email communications to and from professional advisers, particularly the association attorney should be deliberate and thoughtful. Since reading and responding to emails is typically a billable event, the board should determine who can send such communications to the attorney or the attorney's staff. In addition, when litigation is being discussed extraneous people should not be added to the recipient list for fear of jeopardizing the attorney-client privilege.
  •         Replying to all on an email and allowing Outlook to automatically complete email addresses (and thereby send to the wrong recipient if you don't check carefully) are the bane of most emailers' existence. This is doubly true for board members and managers so be sure to review your recipient list prior to hitting send. Also, know that blind copies are  no guarantee that your email recipient will not reveal having seen a copy of your email so think twice before doing that as well.
  •         Emails are typically part of the association's official books and records. As a director, if you do not wish to have your personal email address used to send and receive emails related to the business of running your association, it is wise to set up an official association email address for your directors. You should also discuss with your association attorney how many years you must retain those emails and the best method to do so.
 
These are just a few areas that need to be covered in your association's email policy. If you don't have such a policy, what are you waiting for?