Wednesday, August 9, 2017

When Differences turn into Dysfunction: Why Your Board of Directors Needs a Code of Conduct

The role of board members in a community association is fairly straightforward:  keep informed on the association's business operations; be familiar with and come prepared to discuss the agenda items for upcoming board meetings; encourage and participate in constructive, businesslike discussions of those agenda items; and use your judgement to represent the community and its members in the way you conduct yourself as a board member and in the way you decide the issues that come before the Board. Unfortunately, some community association board members do not follow these guidelines and some create a level of dysfunction that is highly unproductive.  The result is usually a community which devotes a disproportionate amount of time and resources to argument and personal attack rather than to constructive action for the good of the community. A certain amount of discourse and debate amongst board members is not only healthy, it can be productive when crafting policies and protocols resulting from differing viewpoints.

What happens, however, when differences turn into dysfunction?

Naturally, it is counterproductive when board members find themselves at odds with each other. In some communities these power struggles can manifest in any of the following ways:

  • A Board  Member demanding frequent and heightened access to the association's books and records including privileged information for his or her own nefarious purposes;
  • A Board Member disclosing privileged information including, at times, even disclosing litigation strategy to adverse parties;
  • A Board Member refusing to attend meetings if doing so prevents a quorum from being achieved;
  • A Board Member refusing to cast his or her vote;
  • A Board Member refusing to turn over association books and records in his or her possession either while serving on the Board or after his or her term expires;
  • A Board Member slandering fellow board members or the manager or unit owners who express contrary opinions;
  • A Board Member filing a complaint with the DBPR; and
  • A Board Member inciting and encouraging a recall of fellow directors.
Some of the foregoing director actions (such as a DBPR complaint and a recall action) may be justified if the board as a whole is dysfunctional and the dissenting voice on the board is attempting to steer the board in a better direction. However, some directors fail to understand that being part of the board means accepting that decisions are often made by consensus and not by unanimity; gracefully accepting that your fellow directors may not always (or ever) agree with you should be a job requirement for service on the board. Some directors who are at odds with their fellow board members use tactics which are not designed to resolve the issues but rather to inflame them. More importantly, a fractured board more often than not leads to a fractured community.

For directors who believe they are entitled to greater access to the association documents, the answer is "No", a director is not entitled to any greater access to the association records than an ordinary association member unless that director has been tasked by the Board with certain duties which require such access. For example, a director serving on the Screening Committee should have access to the rental and sales applications.

I am often asked by boards dealing with one or more directors who have a personal agenda which conflicts with the board's goals if that director can be removed from the Board. Again, the answer is "No", a director cannot be removed from the board by his or her fellow directors; only the members in a Florida community association can remove a duly elected or appointed director unless one of the limited statutory disqualifiers applies.  However, a board can, by majority vote, remove a director from holding a particular office such a President, Vice President, Treasurer or Secretary. Doing so may not solve the problem but it can prevent a rogue director from convincing vendors and other third parties that he or she has authority that simply does not exist by virtue of no longer having a title.

Many association governing documents define the scope of board authority as a whole but do not address the mechanics of how a board comprised of different individuals can work together successfully for the betterment of the community.  This is where a thoughtful Code of Conduct can fill in the gaps.

A Code of Conduct should address the following areas for your Board Members:

  • Confirming how conflicts of interest can be identified and avoided and which conflicts must be disclosed;
  • Confirming which directors have authority to sign contracts and negotiate and otherwise deal with vendors and professional service providers;
  • Outlining respective officer and director roles;
  • Creating a communication policy and email protocol both internal and external; and
  • Creating basic expectations for board member service and professional decorum.
In the aftermath of Florida's 2017 Legislative Session which created heightened potential liability for directors in connection with certain basic association operations, according to insurance expert Lou Meskin, some insurance companies are already discussing whether or not a Board Member Code of Conduct should become mandatory or, at a minimum, preferred for the issuance of Directors and Officers coverage.  While a Code of Conduct won't be the panacea some boards are seeking, it can lay the groundwork for more successful association operations.

If you'd like more information about creating a Code of Conduct for your Florida Board of Directors, please email me at dberger@bplegal.com.



Sunday, June 25, 2017

Going Too Far Down the Rabbit Hole: How Our National Political Discourse Parallels Our Community Association Discourse

It's hard right now to turn away from the 24/7 news cycle and its discord, rancor and heated rhetoric. When we spend the majority of our time discussing just 20% of the topics which concern us, we cannot commit time or energy to the other 80% which also demands our attention.  It's not surprising that the same prioritization pressure occurs in private residential communities.  How often has a board or membership meeting been monopolized by the concerns of one very vocal owner?  That owner may very well have legitimate concerns but that still does not justify how some communities seem to be the equivalent of the tail wagging the dog.

We live in a world of increasing oppositions; it's becoming harder to find a middle ground on most topics.  For those of us who work with and live in community associations, the current state of political discourse in America sadly comes as no surprise.  In fact, there are some eerie similarities that reveal a few uncomfortable truths about our society.

Name calling, speaking (and yelling) over others, character assassination, accusations, conspiracy theories, and filibustering are never productive and usually reflect a certain intellectual laziness. Fake news and alternative facts have been employed for decades in some communities where facts matter less than agendas and can be employed equally by both members looking to oust a board as well as boards looking to shut down opposition. the best way to do battle with this problem is to have a membership comprised of people willing to undertake an independent analysis of the situation rather than relying on someone else's version of the truth.  When id doubt, just remember this quote by Daniel Patrick Moynihan: "everyone is entitled to his own opinion, but not his own facts."

Calls to remove leaders are nothing new.  Unfortunately, the recent changes to Florida law will make it less likely that recalled board members will challenge even a questionable recall petition if they must do so by paying for such a challenge out of their own pockets.

Conflicts of interest can erode the trust between an elected official and the people who elected him or her. Just as some members of Congress have filed litigation based on the Emoluments Clause in the U.S. Constitution, a perception that a board member has an undisclosed conflict of interest can lead to dissatisfaction at best and recall and litigation at worst. It's impossible to serve two masters so if you have agreed to serve on your community's board of directors, your decisions must be based on what is best for the community and no longer what is in your best interests.

Just as we have spent an inordinate amount to time on a national discussion concerning the improper use of emails and sloppy email protocol, some directors completely underestimate the trouble a lack of email protocol can cause.  The failure to understand, let alone embrace, best practices when it comes to email protocol which includes safeguarding privileged information and employing language which is designed to achieve a goal not blow it up, can make a small flare-up quickly turn into a full-blown conflagration.

Recently, a new client asked me about what can be done to stop leaks and leakers on their board.  Just how did one roofing vendor reduce his bid to make it lower than the bid that was going to contract?  Leaks on community association boards are often designed to do nothing more than embarrass a board member or officer (or help a vendor friend) but occasionally they cause a lot more damage including an anticipatory breach of contract claim.  When it comes to litigation matters or pursuing insurance claims, closed-loop communications are crucial to the ability to minimize the association's exposure in the former instance and maximize its recovery in the latter circumstance.

Building a proverbial wall can become the turning point in a community. Some directors have very firm ideas about the material improvements they would like to make in their community and how to pay for those improvements, either by special assessment or loan.  Often these ideas are not as wildly popular with the association members as Mr. or Ms. Director would like to believe. It is always best to gauge community sentiment before embarking on costly and potentially divisive projects.

Inevitably, the issue of personality conflicts arises in many communities.  Dealing with personality issues (as exhibited by board members, owners or both) can be one of the toughest problems to solve in a shared ownership community.  It is important to remember that your conflicts involve a "living together" relationship so patience, empathy and updated emergency contacts are some of your best tools when dealing with sensitive behavioral problems.

Finally, the potential for violence is the most disturbing comparison of all between the national stage and our local communities. There have been sporadic reports of violence in community associations over the years.  Two that come to mind include a manger who was shot in the head (but mercifully survived) by a disgruntled former association employee and a board member shot and killed by a fellow director as they argued over association matters.  Violence is never the answer but it does underscore how a 'pressure cooker' situation can blow the lid off any society, micro or macro.

The ability to find some middle ground is sadly disappearing from the national stage and it is, unfortunately, no different in some of our communities but our disgust with our national discourse might just lead us to insist that our association affairs be handled more productively.

Monday, June 5, 2017

"What's in a Name?" Quite a bit, particularly for Association Board Members who have been Defamed.

When Shakespeare coined the phrase "the slings and arrows of outrageous fortune" in Hamlet, he probably wasn't envisioning that sentiment could apply centuries later to volunteer board members.  However, the Bard was opining that bad things can happen to a person and, in the present-day context, if you serving on a community association board of directors, those bad things can arrive in the form of defamation:  slander and libel.

Over the years, I've been contacted by far too many board members who recount stories about horrible things which had been said or written about them both during their board service and even years afterwards.  After the tale is told, the next statement is usually, "I want to sue".  This blog post is not about whether or not those harsh words were warranted; it is about whether or not a board member can successfully pursue a defamation claim against his or her detractors. Defamation is a tort which refers to a false statement, either spoken (which is known as slander) or written (which is known as libel) that injures someone's reputation.

Some types of false statements are considered so damaging that they are deemed defamatory on their face (which is known as defamation per se) and thus, do not require the plaintiff to prove the defamatory nature of those statements or the plaintiff's damage. Typical examples of these kinds of statements which are deemed inherently injurious to one's reputation are:

  • Statements that injure another's reputation in his trade, business or profession. For example, if the Board President is a licensed real estate agent and a unit owner alleges that he has cheated other brokers out of their fair share of commissions over the years, his reputation in the real estate industry would be injured;
  • Statements claiming someone has a "loathsome disease";
  • Statements claiming that the person is "unchaste". In one community, a manager was accused of engaging in an extramarital affair with the community's landscaper and thus was the victim of slander per se;
  • Allegations that an individual has been involved in criminal activity.
To state a cause of action for defamation in Florida, a plaintiff must allege the following:

  • The defendant published a false statement. The defendant's knowledge that the statement was or was not false is not the crux of the issue; the defendant's intent to publish the statement to a third party is.
  • The statement was made about the plaintiff.
  • The statement was made to a third party. The defendant must communicate the information with an intent to have someone hear or read it.  For example, if the defendant made the statement with the reasonable belief that no one was around to hear it but the statement was overheard by a third party, that is not slander. The defendant must intend to have the statement read or heard by a third party.  In addition, if the besmirched director is the only one who heard or read the statement, that also does not constitute slander or libel.
  • The falsity of the statement caused injury to the plaintiff.
The following are some of the recognized defenses to a defamation suit:

  • Truth is a complete defense to any slander claim.
  • Opinion as a defense depends heavily on the credibility and reputation of the person rendering the opinion.  If a third party would typically rely upon the person's statements, then simply prefacing the defamatory content with an "in my opinion" qualifier will not be sufficient to shield the statement maker from liability.
  • Consent is analogous to truth as an absolute defense. If the statement maker had the subject's consent to publish the statements than that consent will bar a slander action.
  • Poor Reputation is not a complete defense to slander but can be used by the defendant to mitigate his or her damages in a defamation lawsuit by proving that the plaintiff had a bad reputation for the character trait at issue.
Some problems when attempting to pursue a defamation lawsuit include:

  1. It can be difficult to prove that the statements are false.  Statements that a director is a criminal can be easily proven false by submitting a clean criminal background as proof. However, statements that a director tampered with election ballot envelopes is harder to address unless the director can account for every step of the election process.
  2. "She said, he said" situations can result in a stalemate.  It will be necessary to have witnesses come forward when dealing with slander.  Libel is easier because the written material can be produced.
  3. Online defamation can be tricky.  The plaintiff must prove that the defendant was actually the one making the statement(s) and that may require forensic investigation to uncover the identity of a particular online account.
  4. Proving financial damage in a community association setting is not easy.  Community association directors are typically unpaid positions. Unlike an employee who is slandered and subsequently fired as a result of the statements made, what real financial harm does a board member suffer as a result of statements made to ensure that he or she is not re-elected to the Board?  Emotional distress alone is not enough to mount a successful defamation claim.
  5. Directors may be considered limited purpose public figures rather than private figures. My law partner, Howard J. Perl, authored an article published in the Florida Bar's ActionLine periodical discussing the growing body of national case law which is making it harder for association board members to pursue defamation actions.  According to Howard, "to support a claim for defamation, a private figure need only show negligence by the alleged defaming party, while a public figure must show 'actual malice'." Board members can take themselves out of the realm of a private figure and wind up becoming a limited purpose public figure if they become "a key figure in a particular controversy." For example, if a director takes a very aggressive and outspoken approach on a particular capital improvement project in an attempt to gain membership approval for same and a detractor decides to respond by listing all the reasons that director should not receive support for the project including a regurgitation of past transgressions, the director may have to prove that the statements were made with actual malice. To read Howard's full article on this topic please click here: http://www.becker-poliakoff.com/community-association-board-members-can-be-considered-limited-purpose-public-figures
If you serve on your board and you have been the victim of defamation, speak with an experienced association attorney who can walk you through the steps discussed herein to determine whether or not you have a viable cause of action.

Since I started this post with the Bard, I will end with him:


"Good name in man and woman, dear my lord,
Is the immediate jewel of their souls;
Who steals my purse steals trash; 'tis something, nothing'
'Twas mine, 'tis his, and has been slave to thousands;
But he that filches from me my good name
Robs me of that which not enriches him,
And makes me poor indeed."  William Shakespeare-Othello

Tuesday, May 30, 2017

Would you know if financial fraud is taking place in your community?

I was recently contacted by a condominium client to discuss a growing distrust which had taken hold amongst the board members
and management related to financial functions, particularly with regard to the reconciliation of bank statements I asked my friend and national insurance expert, Joel Meskin, to weigh in on the best way to implement a system of checks and balances to deter and detect fraud. Joel is a fellow attorney, the Managing Director of Community Association Products for McGowan and a fellow member of the prestigious College of Community Association Lawyers (CCAL).


The following is an edited version of our conversation.


DB:    Is awareness of the potential for fraud in a private residential community more important for boards today?


JM:    With the current hyper scrutiny being directed at condominium associations, community association managers and boards of directors in Florida, it is imperative that all involved be very sensitive to the heightened demand and need for transparency.  This should particularly be the case with respect to financial records.


DB:    How do financial crimes occur in community associations?


JM:    Crime in community associations manifests in many ways.  Associations are soft targets and are often lulled into a false sense of security.  Most often, associations are victims of crimes of opportunity due to the failure to use simple checks and balances.  Whether committed by directors or officers, employees or community association managers, even the best can take advantage of unchecked opportunities.  As you know, we provide director and officers' liability insurance and fidelity/crime insurance to community associations around the country, including Florida. With respect to fidelity/crime insurance, it is all about the "Checks and Balances".


DB:    Do you have any recommendations for communities regardless of their size, their budget or their location?


JM:    One thing we have found to be absent from association governance and management is conducting a standard background check on all those who will be handling, managing or involved with financial transactions.  I do not believe that it will be a prohibitive cost and I believe it will be worth its weight in gold to help instill a sense of trust and transparency at this time.  Community associations are often lulled into a false sense of security and informality when it comes to those volunteers who help manage their association. Safeguarding against this false sense of security is simple and inexpensive.


As far as checks and balances go, it is imperative that no single person has control of protocols from beginning to end, especially those who reconcile should not be making deposits.  Many of us have friends or family members who work at banks and we know that they are required to take vacations for specific periods of time to run through oversight cycles. These checks and balances are deterrents more than anything.


DB:    What kind of first party insurance coverage should an association consider when crafting a solid anti-fraud policy?


JM:    You insure the money you have.  You add up all the operating and reserve accounts, add three to six months of operating expenses and that is the limit you need. A Board also needs to make sure it ahs the following coverage:


  • Forgery and Alteration
  • Inside the Premises, Theft of Money & Securities
  • Inside the Premises, Robbery & Safe Burglary
  • Outside the Premises
  • Computer Fraud
  • Funds Transfer Fraud-this is the biggest threat these days as this is when someone hacks into the association's account and then transfers money to another account without authorization.
  • Social Engineering and False Pretense
In my client's case, Joel recommended that the association engage its CPA firm to handle the bank reconciliations for the association rather than having a board member or the manager perform that function. He also recommended an annual audit even if not currently required by statute.


A big thank you to Joel Meskin for his insight and tips on how to prevent fraud in your community association.



Thursday, May 4, 2017

YOU ASKED AND WE DELIVERED! Florida High-Rises Achieve ELSS Opt Out Rights!

YOU ASKED AND WE DELIVERED!

To all existing Florida high-rises who previously opted out of sprinkler retrofits only to be told by their local fire marshals that they still had to install....sprinklers, only this time as part of an Engineered Life Safety System (ELSS), I'm delighted to tell you that your Becker & Poliakoff Lobby Team delivered on a promise and a passion to ensure that your residents have the right to determine for themselves how to handle this costly issue in their buildings.

Thank you to all the high-rise communities who joined our ELSS Opt Out Lobby group and carried the water on this bill and a huge thank you to our Lead Lobbyist, former State Senator and B&P Shareholder Ellyn Bogdanoff.

Fire Sprinkler/ELSS/Bulk Buyer Bill, by Rep. Moraitis and Sen. Passidomo (HB 653 and HB 744)was approved by both the House and Senate and will be sent to the Governor for consideration. It will become effective on July 1, 2017. We are hopeful that the Governor will visit our friends on the Galt Ocean Mile in Ft. Lauderdale who have worked so diligently on the sprinkler issue for well over a decade to sign the bill personally.

 Among other items, the bill will allow high rise buildings to opt out of an engineered life safety system (ELSS). The required vote to do so is two-thirds of all voting interests. This bill also clarifies that non-high rise buildings (under 75 feet) are not required to retrofit with sprinklers or an ELSS. The new law will also require condominium and cooperative associations that operate a building of three stories or more that have not installed a sprinkler system in the common areas of the building to mark the building with a sign or symbol approved by the State Fire Marshal in a manner sufficient to warn persons conducting fire control and other emergency operations of the lack of a sprinkler system in the common areas.


 No other community association law firm in Florida was seen or heard on this issue. This success proves that targeted advocacy on significant community association issues by a capable team and engaged communities is possible. Please be sure to speak with your B&P attorney after July 1st to set up your ELSS Opt Out vote if you are inclined to do so. If your association has any questions regarding this new law or your options, please feel free to contact me at dberger@bplegal.com or by phone at 954-364-6031.

Sunday, April 30, 2017

Be prepared to answer the question "Why?" if you want to defuse conflict in your community

"Why can't we use the pool after dusk?" the wiry man at the microphone bellowed. "I've been a swimmer my whole life and I need to use the pool to stay in shape" and with that statement, he pointed to his trim waistline to indicate how well his exercise regimen had been working.

I waited along with the audience to see how the President who was chairing the meeting would respond.  Instead of discussing the safety concerns she had articulated to me earlier regarding night-time swimming in an unlit pool as well as a desire to save money by not having to heat the pool after hours, she chose, instead, to brush the mater off with a "because we said so" response and called for the next person who had a question to come forward. The swimmer's face reddened and he immediately voiced his outrage, launching into a full-scale denouncement of "this board's policies and arbitrary decisions."

I knew that this would not be the last the board would hear from this owner; likely his affront at the response would find other outlets, including repeated document inspection requests and perhaps even a recall initiative at some point. This was my third Board meeting that week and they all had involved, at some point, association members questioning the wisdom of one or more board rules.  Experience has taught that whenever you tell people what they must do or what they must refrain from doing, you will almost certainly be met with the question, "why?"  How a board member or manager responds to this questions can either inflame the situation or defuse it.

With the recent United Airlines kerfuffle still in the news, more people have been discussing the right and wrong ways to enforce policies.  Do you use a carrot, a stick or alternate between the two?  When a passenger was forcibly pulled off one of United's planes, there were differing opinions about which party bore the greatest blame. Some blamed Dr. Dao for failing to cooperate when the police arrived while others saw an abuse of power and poor decision making on the airline's part in ejecting a customer who had paid for a seat.  Lastly, the initial statements made by the company's CEO that he regretted having to "re-accommodate" a customer were seen as downplaying the aggressive actions taken and only served to inflame an already sensitive situation.

When it comes to association rules and regulations, many boards prefer a stick and a big one at that.  My job as association counsel is to ensure that boards can successfully enforce the rules they pass, otherwise they risk losing both credibility and control.  A successful rule protocol has to (a) identify a real not imaginary problem (b) craft a reasonable rule to solve that problem and (c) communicate (a) and (b) to the individuals against whom the rules will be imposed.

If your board has a rule that requires head-in parking in the association parking lot, you might want to explain in your rules booklet and/or at the meeting where you will adopt that rule that you are doing so to avoid visibility issues and potential accidents as tail-in parking impedes the adjacent walkway.  If another rule provides that renovation work can only be done within the units during certain times and months, you can improve compliance by including an explanation that the times and dates were chosen to minimize inconvenience to other residents when the community is most heavily occupied.  If an owner understands that enforcement of the rule can also benefit them when a neighbor or other occupant violates same you might just have the "aha" moment which encourages compliance.  Rules that are seen as petty or unnecessary are the most likely to result in your owners ignoring or openly defying same.

Volunteer boards can increase the likelihood of their members' voluntary compliance if they let them know why they have made certain decisions. Sadly, in some instances, a reasonable explanation will not satisfy certain members who cannot be assuaged regardless of the message conveyed.  In those instances, enforcing rules violations can include levying fines, suspending use rights, denying lease approvals and, in the most egregious cases, pursuing arbitration and/or injunctive relief in court. However, don't assume that the rationale for even the most basic rules will understood by all your members and, without understanding, you cannot count on voluntary and consistent compliance. 

When you explain the rationale for a rule, you are showing respect. For most people that will be enough as it allows them to comply while saving face.

As for the man who lamented his inability to engage in his nocturnal swimming habit, he joined the board a few years later and became one of the more vociferous proponents of that rule when he bore the responsibility of being a director.

Thursday, March 23, 2017

Part III of the Breaking Up Series: Leaving the Past Behind You

In this final installment of my Breaking Up series, I want to talk about what a new board needs to do to get out from under the legacy left behind from an old board, particularly when that legacy is not a positive one. 

"The secret of change is to focus all of your energy, not on fighting the old, but on building the new." 

Some new boards find that they need to depart entirely from the manner in which the association had previously been operated.  This is especially true when a prior board had been in place for a long time.
Some of the unpleasant discoveries that new boards may make include:
  1. A pattern of signing unfavorable service contracts which were never reviewed by legal counsel and which now bind the association for many years without any possibility for early extrication.
  2. The failure to routinely and consistently enforce important provisions in the governing documents.
  3. A disorganized jumble of association books and records which makes swift and successful document inspections unlikely.
  4. Large delinquencies which have not been properly handled.
When I meet with boards who are confronting the foregoing problems, my first piece of advice is to look forward and focus on setting better patterns in place. Typically, the only exception to this advice is if a crime or fraud was perpetrated by prior board members in which case we discuss all legal and criminal options available to the Board.

In terms of cleaning up the problems inherited from a previous board, the following steps can help put a healthier pattern in place:
  1. Have association counsel review all existing contracts; renegotiate when possible and send out termination notices for those no longer desirable contracts where are up for renewal or for which a verifiable breach exists.
  2. Just because a previous board has failed to enforce certain use restrictions does not mean subsequent boards are forever barred from doing so.  A new board can undertake a process known as "republication" which allows you to once again enforce overlooked restrictions by sending out proper notice of your intention to do so. Please speak with your association attorney to discuss the proper steps to take in order to accomplish this republication process.
  3. Work to digitize your books and records, create an association website if you don't already have one or update the one you do have and upload those newly digitized records to your website. The more organized and transparent you make your operations, the easier your board's job will be.
  4. Large balances are much more difficult to collect than small ones. New boards should discuss their existing collection policy with counsel and decide what is and is not working. You want to strike the right balance between not allowing a delinquency to balloon out of control while not being too harsh in terms of your policy.  Speaking of counsel, assess whether or not your current attorney is proceeding expeditiously with your collections or is part of the problem.
Perhaps the most difficult aspect of breaking free from a prior board is the fact that in many communities the previous board members remain residents in the community and often become very vocal critics of their successors. Moreover, a board is often not overhauled entirely but in a piecemeal fashion which means holdovers from the "old days" may become an impediment to changing the association's culture since they are usually fans of "business as usual".

Change is usually not easy but in the association context, it can make a world of difference when it comes to the board's ability to move critically important projects forward and resident satisfaction.

Tuesday, March 7, 2017

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?

FL Associations Beware: Governor Signs Law Today which Shortens Screening Time for Members of the Military!

SB 184 was signed by Governor Rick Scott of FL today. The new law which amends Section 83.683, F.S. will take effect on July 1st and will apply to condominiums, cooperatives, HOAs and landlords.

The new requires an association to complete the processing of a rental application submitted by a prospective tenant who is a service-member within a mere seven (7) days after submission and must, within that 7-day period, notify the service-member in writing of an application approval or denial and, if denied, the reason for denial. If the association fails to timely deny the application within seven days, the leases goes into effect.

A service-member is defined in Section 250.01, F.S. as “any person serving as a member of the United States Armed Forces on active duty or state active duty and all members of the Florida National Guard and United States Reserve Forces.”

§ 250.01(13) defines the national guard as “the Army National Guard and the Air National Guard.”

§ 250.01(2) and (6) define the Air National Guard and Army National Guard as including “active or inactive.”


As such, the shortened application review period would seem to apply not just to active duty service-members but also to any member of the reserves even those who are not on active duty. The rationale for assisting active military members in securing housing quickly makes sense. However, this new law seems to have a much broader application and puts a real burden on volunteer boards to screen an application within just one week after receiving same.


The starting point for associations is to ensure that their applications ask whether or not the rental applicant is an active member of the military or a reservist. Given the scope of this new law, associations must ensure that screening companies return results more quickly on applications highlighted as belonging to a member of the military or a reservist. Boards are well advised to speak with experienced association counsel about how to quickly handle an application that contains any issues that might trigger a disapproval.




This new law is yet another example of how associations must be nimble enough in their operations to implement statutory changes quickly. Most boards take a full 30 days to respond to an application. For rental applications from active members of the military and reservists that will no longer be an option.



Part II of the Breaking Series: 50 Ways to Leave Your Lawyer

"Make a demand, Stan"

"Write off the fee, Lee"

"What does this cost, Ross?"


In Part II of my Breaking Up series, I will discuss how to leave your lawyer....if you must! The title of this blog post is a bit of misnomer as I won't indulge every fantasy you may have about canning your counselor.

As with your change in management, to transition to new legal representation it helps greatly if you have a copy of your retainer agreement to review first. Some lawyers and law firms would have you believe that you must defer your decision to seek representation elsewhere until the term of their retainer expires which is simply not true. Unlike other contracts, legal retainers are terminable at will. As such, if there is a specific termination notice required by your legal retainer it is really a formality as (a) your association can hire and use more than one lawyer or law firm at a time and (b) the attorney should only be performing services requested by your association.

Some boards prefer to have new counsel send prior counsel notice of that termination and request for the turnover of any active files.  Others prefer to do it themselves, either to thank the attorney for his or her past service or to outline the litany of complaints that led up to the departure decision. Once the decision is made to leave, it is important that the notice of that decision be very clear that work must stop other than on litigation matters which might be jeopardized before new counsel can substitute in. On non-crucial matters, I have sadly seen attorneys on the way out the door engage in a flurry of last minute billing activity so it is important to ask for a complete accounting of what is owed at the time notice of termination of representation is given.


It is also important to remember that if your board chose to have an attorney defer fees and advance costs on litigation matters (this is often the case with collection matters), you will need to pay those deferred fees and costs prior to those files being turned over to the association and its new counsel.  However, there are times that new counsel can move forward without having to obtain files from former counsel; this may be particularly true with non-litigation matters where new counsel is less than confident in a predecessor's work product. Maintaining a legal relationship because you don't want to pay those deferred fees even
while the matters are not being adequately handled would be shortsighted at best.


Litigation files may have what is called a charging lien on them. A charging lien is a type of attorney's lien under which an attorney can eventually claim a portion of any money paid to the client as a result of a judgment, settlement or verdict for unpaid legal fees and costs owed to that prior attorney. It is essential to advise subsequent counsel of any fee arrangements, particularly contingent fee arrangements, made with prior counsel as those arrangements could impact strategic decisions with regard to your pending legal matters as well as limit your new counsel's options.  Lastly, you may be surprised and very disappointed to learn that prior counsel did not handle things as efficiently or properly as possible, resulting in damages to your association and a potential malpractice claim against former counsel. It is then up to your board to decide whether or not you wish to spend time and resources pursuing a claim to make you whole.


As with other transitions, the best lawyers understand that the end of a client relationship is not always permanent and that a gracious and professional departure is in the best interests of all parties.

Sunday, February 26, 2017

Breaking up is hard to do: PART I- How to Navigate Management Company Transitions

Hopefully, most of us enter into relationships with the expectation that they will last. However, for those of us past adolescence, we realize that even long-term relationships can end and, even when they were good for a long time, the manner in which they do can overshadow everything that preceded that ending.

In the next few posts in this Breaking Up blog series, I will discuss the various transitions a board can face including transitions from the developer, from former counsel and from a long-standing predecessor board.

In the context of a community's relationship with professional management, the stakes can often be quite high.  More and more volunteer boards have come to rely upon professional management to undertake the daily operation and administration of their communities. For some boards, this reliance is reasonable and a balance is struck between the directors' responsibilities and that of their licensed manager. However, for a growing number of communities, the professional manager has supplanted the board with the staff, contract vendors and professionals, and, in extreme cases, even with the members. What these boards may not realize, is that the ultimate responsibility and accountability will legally and stubbornly cling to them regardless of their efforts to transfer much of the operational control to management. As such, it is time for boards to become more proactive about how a relationship with a professional advisor might end and what can be done before that happens to insert some clarity into that process.  Otherwise, the transition can be difficult and even damaging to the community.

One of the first and most obvious steps a board can take is to ensure that its management agreement is properly reviewed by legal counsel prior to signing.  If your board would like the ability to terminate, with or without cause, at any time throughout the term of the contract, then the contract must provide the association with that right. If your Board would like to have the ability to control the handling of association funds and records, then that must be spelled out as well. The time to discuss what you want the relationship to be and how its ending should be handled, naturally, is before you sign on the line.

Equally important, the board must retain a copy of the executed management contract. Many boards are dismayed to learn that they have not retained possession of a copy of their management agreement, which can be problematic if problems surface and they must ask the management company to provide that agreement to them or to their attorney. Most large management companies these days provide an impressive array of services which can include all aspects of the financial operations for the community, in addition to the infrastructure maintenance, insurance procurement, collection of delinquent accounts and interaction with vendors and professionals. Most large management companies also offer technology which can streamline operations and make them more effective by taking advantage of available technology.  However, when it comes to receiving copies of all those digitized records at the end of a relationship, some companies are better than others at achieving a graceful departure and some refuse to deliver the records altogether and assert that those records belong to the management company, not the association for whom the records were created.

Florida law requires management companies to turn over the association's records at the end of the relationship, even if a monetary dispute exists.  It might be tempting to use the leverage of those records and the crippling effect their absence will create for the community and the new manager or company coming on board, but it is in the manager's or management company's best interests to resist that urge. As with most things in the community association arena, what goes around comes around and new boards often bring back the management company which their predecessors ousted; that is unless a less than gracious departure left a sour impression.

As for the board's responsibilities in this process, it is analogous to a marriage. A fine-tuned prenuptial agreement can prevent a lot of unnecessary pain down the road and, if you were the partner who did not handle any of your personal finances, it helps to learn how to write a check and fast. Boards need to ensure that a management company transition does not place the association's operations in jeopardy.  While a perfect management company fit can last for decades and be mutually beneficial for both parties, it is important for boards to at least consider the possible end of the relationship at the time they are entering into each new contract.

Monday, February 6, 2017

Attention Boards: your two favorite menaces have combined: Airbnb and Pets!

Whether I am giving a presentation to hundreds of people, teaching a class to dozens of managers or meeting privately with a board of directors, the two issues that have come up without fail over the last few months are: Airbnb and Emotional Support Animals (ESAs) and other pet issues.

The questions I field on these topics usually sound like this:

"Our community is turning into a hotel. We have people coming and going at all hours and we have no idea who they are and, in addition to our security concerns, our recreational amenities are taking a beating."

"We are a no pet community but we have people bringing in more dogs each year and claiming they are emotional support animals. What about the people who bought here specifically because they do not want to or cannot live in close contact with dogs?

As a result of having recently rescued a dog from our local Humane Society, I have been searching for ideas to keep her from tearing down the house during working hours when she is alone. Lo and behold I cam across a site which advertised itself as "Airbnb for Dogs"! Oy. For a fee you can drop off your pet at a sitter's home but just imagine if that home happens to be inside a pet-restricted condominium or HOA? You get the best (or worst depending on one's perspective) of both violations!

With regard to Airbnb, VRBO, HomeAway and other similar sites, the ability to control your owners' engagement in this type of short-term rental activity depends largely on the provisions in your association's governing documents. If you were hoping your local government would help regulate this activity you should know that Airbnb is making that much more difficult by pursuing legislation which would restrict or prohibit a local government's ability to impact their business model which means your association is likely to be on its own when trying to regulate this behavior.  Attempting to pursue each violation as a violation of your minimum leasing requirements can be both costly and laborious given that each renal lasts only mere days. In my opinion, it is more effective to amend your documents to make the listing of properties in your community on these sites the violation rather than focusing on the rental term.

"But how can we tell if we have properties in our community listed on these sites before the guests show up?" you might ask.  Wherever there is a problem, a cottage industry designed to solve it cannot be far behind and the same is true here. There are now companies that exist which search these short-term rental sites each month to confirm whether or not there are units or homes in your community listed there. When those listings are found, your board can spring into action.

With regard to emotional support animal requests, I realize that you may question the truthfulness of many of these requests. You may even feel that the cards are very much stacked against a volunteer board of directors attempting to enforce reasonable pet restrictions.  This does not mean that associations need to rubber stamp all requests the receive. The best policy is to turn over these requests to a community association attorney who is highly experienced with requests for accommodations under the fair housing laws. This way, you can ensure, to the fullest extent the law allows, that any request for an exception to your pet rules is properly investigated and documented. Some people making false claims for fair housing accommodations will back off when asked to produce proper documentation while others are more intransigent and will proceed to acquire documentation off the internet without ever seeing a medical professional. It is also important to remember that there are individuals who are truly in need of an emotional support animal and are legally entitled to a reasonable accommodation.  Your job as a volunteer Board member or community association manager should be to work with your counsel to comply with the law and avoid the often significant penalties and costs associated with violating the fair housing laws while protecting the integrity of your pet restrictions.

The appeal of monetizing one's assets should really come as no surprise as that appeal is strong and there is no asset more easily monetized than a Florida getaway. For volunteer boards attempting to deal with a member's desire to do whatever he or she pleases with regard to occupancy of his or her unit, getting a handle on short-term rental activity and fraudulent ESA requests will certainly require the assistance of experienced counsel, a little ingenuity and a whole lot of patience.

For board members and managers in Florida who have more questions about this blog topic, you may reach me at dberger@bplegal.com or by phone at 954-364-6031.