Friday, February 26, 2010

How much do you know about Florida’s Legislative Process?

How much do you know about the legislative process in Florida that could soon have a significant impact on the way you run your community and the costs associated with doing so?

We have a part-time Legislature in the State of Florida. We have 160 members of the Florida Legislature: 40 Senators and 120 Representatives. The President of the Florida Senate is Jeff Atwater (a banker from North Palm Beach) and the Speaker of the House is Larry Cretul (a realtor from Ocala).

Our 2010 Regular Session will commence on Tuesday, March 2nd at 9:00 am and will run for 60 days. Each legislator is given 6 bill slots and the filing deadline to fill those slots is noon on March 2nd. Once a legislator sponsors a bill, it is referred to one or more committees related to the bill’s subject. Each committee of reference studies the bill and decides if it should pass, fail or amend the bill. Once a bill has passed through all its committees of reference it will then go to the full house for a vote. A majority of the full house will then vote to accept the bill as is, change it or reject it. Once passed, the bill then goes to the other house of the Legislature for review.

When a bill is passed by both houses, it is then sent to the Governor (usually in June). The Governor can sign the bill into law, allow it to pass into law without his or her signature or veto it. Unfortunately, in Florida, we do not have a line-item veto and more than one worthy bill has suffered a gubernatorial veto unnecessarily.

Our legislators have hundreds of bills pass their desks during our 2-month legislative session. There is simply no way that these elected officials can be subject matter experts on each of those proposals so they rely on constituents like you to relay what you do and don’t like about the proposals that have the most impact on you. It is possible to play a meaningful role in our legislative process rather than simply reacting after the fact.

Your community should know who your representatives are and they should know you. When your representatives are in their district office, it is advisable to make an appointment to stop by and introduce your community and spend a few minutes discussing issues of particular concern to your members. Most bills start out as an idea planted in a legislator’s mind by a tenancious constituent. Why shouldn’t that constituent be you? For more information about how your community can get involved this Legislative Session, please visit the Community Advocacy Network’s website at www.canfl.com.

Wednesday, February 24, 2010

Recent Case Could Mean More Financial Problems For Some HOA’s.

The Second District Court of Appeal in Florida recently issued a decision in the case of Coral Lakes Community Association, Inc. vs. Busey Bank, NA. et.al. holding that a Ft. Myers Homeowners’ Association could not collect the past due assessments provided by Florida Statutes §720.3085, from the First Mortgagee taking title to a Lot in the community by foreclosure sale. While this is only one DCA opinion, its potentially significant negative impact on many homeowners’ associations cannot be ignored. It is important to place the decision in perspective, as well as to determine what options for minimizing its impact may be available to the HOA’s that are most likely to be affected. This opinion does NOT impact condominium associations.

Notably, this case and the Appellate Court’s decision, rest on a specific set of facts. That is not to say that the decision cannot be expanded to apply to other fact patterns and other jurisdictions. However, in the interest of gaining perspective, the specific facts and circumstances involved are important. One of the most significant factors contributing to the Coral Lakes decision is the specific language contained in the Association’s Declaration removing the obligation of a first mortgagee to pay for any unpaid assessments on a Lot, coming due prior to the time that the mortgagee acquires title by foreclosure sale or by deed in lieu of foreclosure. In addition, the case involves a mortgage that was recorded at the time such Declaration provision was in existence and under an older version of Florida Statutes §720.3085.

In Coral Lakes, the Association’s Declaration specifically provides that first mortgagees taking title to a Lot by foreclosure sale or by deed in lieu of foreclosure, are not liable for any assessments coming due prior to the mortgagee’s acquisition of title, unless the payment of such funds is secured by a claim of lien recorded prior to the recording of the foreclosed or underlying mortgage. The Court reasoned that because the first mortgagee was a third party beneficiary to the Declaration, and the Declaration was a contract between the association and its members, applying amendments to Florida Statutes to impose liability where it would otherwise not exist, impairs the contractual rights of the mortgagee. Moreover, as the mortgage involved in this case was entered into prior to the effective date of the statutory amendments imposing mortgagee liability for unpaid assessments, the statutory changes could not be retroactively applied. The Court noted that the Association could have protected itself by amending its Declaration to provide that the association lien for unpaid assessments related back to the date of recording of the Declaration, or that its lien was superior over intervening mortgages.

Needless to say, this decision has the potential to negatively affect many homeowners’ associations that are already struggling financially. However, its application may not be as broad as many banks will likely attempt to argue. As stated previously, the case relied heavily on the specific language of the Coral Lakes Declaration. In addition, the decision relied upon a version of the Florida Statutes that has since been further amended to require lenders to pay HOA’s the lesser of 12 months past due assessments or 1% of the original mortgage debt in the event a mortgagee takes title to a Lot by foreclosure sale, or by deed in lieu of foreclosure. Although the Court in Coral Lakes, implied that the result of the case would have been the same under the current statute, we are not so quick to agree. It is important to understand that the decision rendered in Coral Lakes only reflects the position of one court under very specific facts and circumstances. While banks are sure to argue in favor of broadly applying this Court’s decision, counsel for homeowners’ associations will argue just as strongly to limit its application. Unfortunately, only time and further challenge will reveal the true significance of this decision.

So, what can homeowners’ associations do today to determine and/or limit their possible exposure to the fallout from this decision? First and foremost, associations are urged to consult with legal counsel to determine if the provisions of their declarations leave them susceptible to the negative impact of the Coral Lakes decision. If your Declaration does not contain language significantly limiting or eliminating the liability of first mortgagees for unpaid assessments, it is unlikely that this single decision will have a tremendous impact on your community. However, if your declaration contains a provision similar to that contained in the Coral Lakes case, you will want to discuss possible methods of limiting the impact of this ruling on your community with your association’s legal counsel. In many cases, it may be possible to distinguish the facts of the Coral Lakes case from those facing your community. In addition, it may be possible to amend your declaration in an attempt to minimize the association’s existing exposure, as well as to attempt to avoid any future exposure to the impact of this decision. There are no guarantees, however, that amending your documents will cure this problem with regard to already recorded mortgages IF you have “Coral Lakes”-type language in your documents.
Again, you cannot determine whether or not this decision has the potential to negatively impact your community’s rights to pursue lenders for past due assessments until you review the language contained in your own set of governing documents. You and your legal counsel should review them to see if (a) you have language limiting a lender’s liability and (b) you have language incorporating future changes to the HOA Act into your documents.

Monday, February 22, 2010

Would a Condo and HOA Board Member Draft Solve Our Problems?

This past Saturday, the Community Advocacy Network (CAN) and the Law Firm of Katzman Garfinkel Rosenbaum (KGR) held one of our free Board Member Boot Camps (Registered Trademark) in Hollywood, Florida. Approximately 200 representatives from common interest ownership communities showed up to be trained to be the best board members possible. In keeping with the military theme (lawyers in fatigues, top secret dossiers, MRE’s!!), I began to wonder if a board member draft would help alleviate some of the problems in our communities.

Certainly, if every owner who purchased a home or condominium or cooperative unit knew that his or her number to serve on the board would eventually come up, it would take away some of the angst and paranoia over election procedures. It would also remove much of the anxiety over whether or not people will run for the board. Knowing that you would eventually have your turn to serve on the board and have “your say” might also reduce much of the friction between boards and their owners.

Just as the military imposes a draft in times of need, a board member draft might be just the remedy needed to cure some of the ills plaguing our associations from time to time. Of course, just as with the military, there would have to be certain minimum qualifications for service so all of the current eligibility requirements pertaining to delinquency, felon history, etc. could remain and perhaps a few others added.

Why shouldn’t everyone who buys in a common interest ownership community have to pitch in and serve on the board for one term? Perhaps sitting in that seat will give everyone a fresh perspective on the job that volunteer board members perform on a daily basis. I jokingly suggest a statutory board member draft but in reality it might make a lot of sense

Thursday, February 18, 2010

Do you know when you are filtering?

I attended a Managing Partner Workshop in NYC a few months ago and one of the exercises the instructors used was a 3 minute film clip that all 10 of us new managing partners were instructed to watch.

The video clip was of a bunch of teens passing a basketball amongst themselves. Three of the group were wearing white shirts and three were wearing black. We were instructed to count the number of times the teens in the white shirts passed the ball to each other. We were further instructed that a pass could be in the air, off the ground or off a body. With those instructions in mind, the clip rolled.

Three minutes later, the video was shut off and we were each asked how many passes we saw. A few of us came up with the same number while one or two were wildly off. The instructors then asked us if we saw anything else on the video to which we all shook our heads “no”. The instructors smiled and flipped the video back on. Imagine our surprise to see a man in a gorilla suit walk out during the basketball game, turn towards the camera, wave and then slowly walk off.

How had a whole room of supposedly intelligent people manage to miss a gorilla!! The fact is, we were viewing the scene through the filter that had been set in place by the instructors. We were so intent on counting the passes so we would win the contest that we didn’t see the most obvious part of the scene before us.

This exercise taught me a lot about why so often communication between opposing sides is difficult. We all filter. Each of us receives information imperfectly and each of us fits the messages we do receive into something shaped by our own past experience, bias and state of mind. Is it any wonder that none of us lets the facts stand in our way?

Next time you are dealing with a difficult person in your community, ask yourself if you have your filter turned on and whether or not you are missing something important that should be plain as day.

Wednesday, February 17, 2010

Do local fire marshals and city inspectors really understand the law as it applies to your community?


Why is it that many local fire marshals and city inspectors seem to be heartless and uninformed when it comes to applying new and very costly Code requirements and upgrades to residential buildings that have been in existence for decades without incident? Are they aware of the section in the Florida Statutes that requires some thought and forebearance on their part when it comes to existing buildings?

Section 633.025(6) of the Florida Statutes currently provides as follows with regard to Minimum fire safety standards:

With regard to existing, buildings, the Legislature recognizes that it is not always practical to apply any or all of the provisions of the minimum fire safety code and that physical limitations may require disproportionate effort or expense with little increase in life safety. Prior to applying the minimum fire safety code to an existing building, the local fire official shall determine that a threat to life safety or property exists. If a threat to life safety or property exists, the fire official shall apply the applicable fire safety code for existing buildings to the extent practical to assure a reasonable degree of life safety and safety of property or the fire official shall fashion a reasonable alternative which affords an equivalent degree of life safety and safety of property. The decision of the local fire official may be appealed to the local administrative board described in s. 553.73.

From all of the anecdotal evidence I have received through my work with my firm’s Community Advocacy Network (CAN) , the procedures set forth above are NOT being applied. We have no reports that local fire marshals attempting to enforce the fire safety code are actually undergoing the necessary analysis and applying the Code only as needed. There are similarly no reports of “reasonable alternatives” being suggested or accepted by the fire marshals or city inspectors. Instead, many of these officials are trying to stick a square peg in a round hole which begs the question if they are (i) unsympathetic to the plight of so many struggling association members (ii) uninformed and uneducated about the requirements of the law or (iii) trying to stimulate their own mini-economy bywriting citations for all this work?

Last year Governor Crist vetoed a bill that would have provided sprinkler retrofit relief to millions living in impacted high-rises. This year, Charlie has once again threatened to veto bills (HB 561/SB 1222) that contain much-needed relief from costly fire alarm, elevator and sprinkler upgrades. A surprising move to be sure in a tough election year!

Our Legislators and our Governor need to be educated on this point. It is time to fight back. Please take a moment to call, fax a letter or email the Governor and the Lt. Governor and let them know that you are demanding their help NOW. The current law on the books requiring more sensitivity as it applies to retrofitting existing buildings needs to be enforced. HB 561 and SB 1222 need to be allowed to pass safely into law.

You can email Governor Crist at Charlie.crist@myflorida.com. You can email Lt. Governor Jeff Kottkamp at Jeff.kottkamp@myflorida.com. You can call both at 850-488-7146 or send a letter via fax to 850-487-0801.

Tuesday, February 16, 2010

What is the bankers’ solution? Non-judicial foreclosures in Florida.

It is no surprise that millions of Floridians living in common interest ownership communities want to make bankers be better neighbors. Rather than stalling on their foreclosure actions and allowing the rest of the community to continue to pay to upkeep their property, these folks want lenders to (a) foreclose more quickly (b) pay more in terms of past due assessments owing on the property and (c) pay for any special assessments levied for repairs or property maintenance throughout the pendency of the foreclosure action.

What is the banking industry’s response this Session to such calls for reform? A new non-judicial foreclosure procedure!

The Florida Bankers Association (FBA), the 400-member-strong lenders’ lobby, has come up with a bill, The Florida Consumer Protection and Homeowner Credit Rehabilitation Act, to establish “non-judicial” foreclosures in Florida by July 1. Twenty-eight other states use non-judicial foreclosures or a combination of same with traditional judicial foreclosures.

What’s a non-judicial foreclosure? Banks would bypass the courts to accelerate foreclosures against defaulting homeowners. Judges would no longer rule on foreclosure cases so clogged court dockets would no longer be an issue.

Sounds good, right? What is the catch? Well there are a few things to worry about should non-judicial foreclosures become the norm in Florida.

The law would apply to mortgages entered into after July 1 so it would do nothing to ease the current backlog.

Non-judicial foreclosures must conclude in no less than three months and no more than a year. Currently, most foreclosures in Florida take over a year to 18 months to conclude or even longer if the foreclosure is contested. The jury is still out as to whether or not this shortened time frame will work to an association’s benefit.

There are constitutional issues involved should the non-judicial foreclosure process be used for homestead property.

The non-judicial foreclosure process provides only for informal meetings between creditors and debtors so the Florida Supreme Court’s newly created mandatory mediation for lenders and homeowners would be rendered ineffective.

Even after homeowners are evicted, banks can still pursue them for unpaid mortgage debt. However, banks will waive that right if homeowners avoid trashing or stripping the house before the new owner takes over.

Many homeowners are opposed to the non-judicial foreclosure process and others see it as not doing enough to make lenders the good neighbors they want in their community. The Florida Legislature convenes on March 2nd. Right now the bill does not have an official number or bill sponsors. Stay tuned.

Monday, February 15, 2010

Warn your association members about scams.

Over the past few years, tens of millions of dollars in Florida have been lost in a scam primarily run by con artists using bogus or altered Lottery tickets.

There’s almost always a sad story, there’s almost always a pressing reason, and there’s almost always some sort of "verification" over the phone.

Not surprisingly, these scams tend to target Florida’s elderly population. Most highly functioning associations perform a number of community services for their membership. Financially healthy members equate to a financially healthy community. If your community has an in-house cable channel, a website or a newsletter please let your folks know that “If it sounds too good to be true, it probably is."

Please advise your members that if they receive one of these calls or emails, they should call the police, and give them a description.

How does the con work, and what do you need to know to avoid it? The Most Common Scams and the truths refuting them are:

“This is a winning ticket, but I need money to claim it. If you help me with the upfront money, I’ll share the jackpot with you.”

The truth: once the ticket is bought, no money is EVER required to claim a prize.

“I can’t cash in my winning Lottery ticket because I’m not a U.S. citizen.”

The truth: you don’t have to be a U.S. citizen to claim a lottery prize.

“Let’s call the Lottery. They’ll tell us this is a winning ticket.”

The truth: winning tickets are never confirmed over the phone. The person on the phone is just a part of the scam.

“We need to hurry! I need to get back to my family – it’s an emergency!”

The truth: the thieves are trying to rush you so you don’t have time to think or call for advice or help.

If you would like more information to protect your most vulnerable community members, you can visit www.satgin.org.

Friday, February 12, 2010

Do you know which of your association’s governing documents carries the most weight?

Many times owners and board members will refer to an association’s governing documents with one, all-encompassing word: ”the Bylaws”. In fact, the Bylaws are one of several documents governing an association’s affairs and not the most important one at that! In addition to the Bylaws, there is the Declaration of Condominium or the Declaration of Covenants and Restrictions (for a homeowners’ association), the Articles of Incorporation and the Rules and Regulations (for those associations that have them).

If there were conflicting provisions in these governing documents, would you know which would control? The 1991 Third District Court of Appeals case, S & T Anchorage, Inc. v. Lewis, reinforced that a community association is a corporation that cannot act in any way that is not authorized in its Articles of Incorporation or Bylaws and that the Articles and Bylaws have to be consistent with the provisions of the superior document, the Declaration.

In addition, Section 617.0206 of the General Not For Profit Corporate Act provide that the Bylaws must not be inconsistent with the Articles of Incorporation. Thus, the order of priority amongst your association’s governing documents (from highest to lowest) are as follows:

1. Declaration of Condominium or Declaration of Covenants and Restrictions
2. Articles of Incorporation
3. Bylaws
4. Rules and Regulations

It is for this reason that matters of most importance be placed in your Declaration. In addition, when preparing amendments to your documents, it is advisable to review each of the association’s governing documents to amend all similar provisions. Communities confronted with especially high amendatory thresholds in their declaration may be tempted to more easily amend the Bylaws or Rules and Regulations instead. Doing so can result in enforcement problems down the road.

Tuesday, February 9, 2010

How to put some teeth into your association’s governing documents!

Whenever a board wishes to do something, we tell them to “check your documents”. Many times, however, they are shocked to learn that they can’t quite do everything they had intended, especially when it comes to enforcing use violations.

What can a community do to ensure that the board has all the proper tools needed to enforce violations? Below is a list of enforcement provisions that should be found in your governing documents and, if they are not, should be amended thereto. Please keep in mind that enforcement provisions such as these should properly be found in the association’s Declaration of Condominium or Declaration of Covenants and Restrictions rather than the Bylaws, Articles or Rules and Regulations. Sticking these provisions in the document carrying the greatest weight will increase their odds of successfully withstanding a challenge.

Enforcement Provisions:

Self Help/Special Assessments: This will allow the board to take certain maintenance or remedial steps that an owner fails to take and to specially assess him or her for the costs of same.

• Prelitigation Attorney’s Fees: This will allow the board to require the violating owner to pay for attorney’s fees and costs associated with securing his or her compliance with the documents rather than having to wait until litigation or arbitration is commenced.

• Towing: This will allow the board to safely tow unauthorized vehicles from the association premises.

• Collection of Rents/Use of a Uniform Lease or Lease Addendum: This will allow the board to collect rent from tenants in delinquent units. A board-approved uniform lease or lease addendum should also allow the board to evict troublesome tenants without having to rely on the owner to do so.

• Fining: This allows the board to fine up to the statutorily permitted amounts so long as proper notice procedures and an opportunity for a hearing are followed. Fines cannot become liens against a unit or lot so collecting them requires Small Claims Court. Notwithstanding that hurdle, they can prove to be a deterrent in some circumstances.

• Suspension of Use and Voting Rights: This can only currently be used by HOA boards but several bills this Legislative Session would empower condominium boards to similarly suspend use and voting rights for delinquent owners if the governing documents so provide.

• Security Deposit for Common Area Damage: This allows the board to use funds deposited for common area damage to be used to pay for any damage inflicted by an owner, his tenants, guests or other invitees.

It is important to remember that the board’s ability to meet members’ expectations with regard to the community’s appearance and function is limited by the tools provided to them under the governing documents.

Monday, February 8, 2010

Does a board’s failure to pursue delinquencies constitute a breach of fiduciary duty?

A reader recently wrote to me and asked whether or not his board’s failure to timely pursue delinquent owners would constitute a breach of fiduciary duty. A fiduciary duty is the obligation to act in the best interest of another party. Whether or not a board’s decision to not pursue a delinquency and to rely on a special assessment against paying members to make up such deficit remains an issue of great importance to discuss with association counsel. There are many factors to take into account when deciding whether or not to move forward with the association’s foreclosure action.

Boards in today’s market would be well advised to re-examine their current collection policy and to tighten up those procedures. If, in the past, the association has given three notices before proceeding to send the file over to the attorney for collection, in light of today’s harsh economic realities, clinging to that policy will only allow the delinquency to balloon out of control. Moreover, if the association fails to file a lien timely, it is possible that the owner may file for bankruptcy protection in which case the association without a lien becomes an unsecured creditor, virtually guaranteed to collect nothing.

Tightening up collection procedures to meet today’s challenges does not need to suggest that the association act heartlessly or without due consideration. It remains a mystery to me, however, when I meet with boards who have allowed an owner to remain delinquent for well over a year without taking any action whatsoever as to the thought process behind such inaction. Paying owners have every right to expect the board to take prompt action to secure the association’s assessment stream.

Friday, February 5, 2010

What can you do to make lenders shoulder more of the burden in your community?

The 2010 Regular Legislative Session will convene on Tuesday, March 2nd and is scheduled to run through Friday, April 30th. Noon of opening day is the deadline for legislators to file bills. That being said, there are already 44 bills that have already been filed that have the ability to impact your private residential community.

Many of these bills contain very positive changes for community association members; some require further modification and a few will have to be defeated in order to avoid detrimental impact to associations.

There are several bills that would allow associations to collect rent directly from tenants in delinquent units. There are several bills that will allow condominium boards to suspend the common area use rights of delinquent owners. Many bills this session are rightfully looking to require lenders to shoulder more of the financial burden currently being carried by paying association members. Several of the lender reform bills attempt to do the following:

* Increase a lender’s statutory cap for condominium associations from the current 6 months to 12 months!
* Require a lender to pay the statutory cap up front upon filing its foreclosure action.
* Require the lender to pay for any special assessments levied by the board throughout the course of the lender’s foreclosure action to pay for uninsured losses (i.e. deductible) as well as to pay for any repairs needed as a result of a casualty or other act of God.
* Remove the statutory cap for lenders entirely.

The Florida Bankers Association is a very strong lobby in the State of Florida. Not all of the above proposals will pass. However, in order to ensure that something positive passes this year for your association you must mobilize your members to contact their legislators and let them know they expect their support to pass bills that are needed to return community associations to a sounder financial footing in 2010!

Lastly, I will be speaking at a meeting open to the General Public on Tuesday, February 9th at 7:00 pm at the Environ Cultural Center, 3800 Environ Blvd. Lauderhill, FL. We will be discussing many of the items which I blog about including the collection crisis, pending legislation and the upcoming statute of limitations on Hurricane Wilma claims. I hope you can join me at this meeting. For more information please call 954-731-4022 or contact my assistant, Diane, at dschick@kgrlawfirm.com.

Tuesday, February 2, 2010

Just how much can associations charge for use fees?

Does your association charge a fee to use the community pool, the clubhouse, the service elevator or other common elements or association-owned property? Are there fees attached to the use of the boat slips and/or that second parking spot? Have these fees been around so long no one can remember how they got there and why?

Section 718.111(4) of the Condominium Act provides that an association may not charge a use fee against a unit owner for the use of common elements or association property unless such a fee is provided for in the Declaration of Condominium, such fee has been approved by at least a majority vote of the members or the fee relates to expenses incurred by an owner having the exclusive use of the common elements or association property.

Under these guidelines, it's obvious that a fee for that second parking space or boat slip falls under the third category of charges relating to the exclusive use.

If your Declaration is silent on the matter of fees for the use of other common elements such as the pool and the clubhouse, you must then ask whether or not a majority of the membership approved such a fee. Let's assume that you find the proxies and ballots used by the membership to approve the implementation of a $150.00 cleanup fee every time the pool is used. Does this mean the association can charge such a fee because it followed the statutory procedure and obtained majority membership approval to do so?

Boards are tied to a reasonableness standard and the business judgment rule. Under the latter, boards must exercise the prudence of a "reasonable business man" when making decisions on the community's behalf. Under the former, the board must have a legitimate business interest in taking an action and the methods used must not have a disparate impact on certain members. The board's actions must be reasonable.

Under my scenario above, the board's decision to enforce a $150.00 cleanup fee every time the pool is used would most likely not pass either of the tests above. Unless the pool must be drained and cleaned each time a person uses it, why such a high fee? In a case out of Michigan, a community passed such a fee not really because they needed to clean up the pool each time but because they wanted to discourage pool use. The mostly elderly community's decision to charge the fee had a disparate impact on the younger residents who were most inclined to use the pool.

Knowing you can do something under the statute or your governing documents is only 1/2 of the equation. As a board and a community, you must still discuss with your association counsel whether or not your proposed action meets the guidelines of both the business judgment rule and the reasonableness tests set by the courts.

Monday, February 1, 2010

Association Negotiations 101!

The common definition of negotiating is to communicate in search of mutual agreement. We negotiate every day whether we realize it or not. Often, it is obvious especially when we are trying to purchase a service or a product. Maybe it is a little less obvious when we are navigating the workplace or even just dealing with relatives about where we want to spend the holidays.

If you walk into any bookstore you will find dozens of books dealing with successful negotiation tactics. There are tricks of the trade that do increase your odds of achieving mutual agreement in less time and more painlessly. How much more effective do you think your negotiations with your board of directors would be (or your owners if you serve on the board) if effective negotiators were involved in those communications?

The first thing to remember is that taking positions does not work during negotations. Looking at the big picture or end game is much more effective than starting a dialogue from an entrenched position. Humor and self-deprecation can be powerful and very effective tools. Here are a few more tips to remember next time you are negotiating with your board or your owners to solve a particular problem:

• Not everything is worth negotiating; some battles simply don't need to be fought.
• Warn in a respectful way; don't threaten.
• Be soft on the people and hard on the problem.
• You can't control a bully's behavior, you can only control your response.
• Don't strike back.
• Don't give in.
• Don't break off or walk away. Keep working towards a mutual agreement.
• Ask the right questions: "What will it cost if we don't reach an agreement here?"
• Acknowledge some expertise on both sides.
• Present your view in addition to the other side's view not as an alternative.
• Don't always respond with a like-kind response.
• Acknowledge differences with some degree of optimism.
• Consider face-saving options when possible.
• Do the proper research before embarking on the negotiations. Don't threaten certain actions or repercussions that aren't feasible.
• Silence can be powerful.

Successful negotiation in a community association context is especially important because it is a "living together" relationship. Unless one party leaves the community, you will be forced to contend with each other for many years after the negotiations are over. Next time you're in a bookstore, wander over to that negotiation section and see if you can't take away a few clues that make sense in your association context.