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.