Sunday, October 15, 2017

Can Your Community Association Stop Bullying and Harassment in Their Tracks?

Bullying in any form cannot be condoned either in schools, workplaces or communities.  While a newly filed bill by Rep. Emily Slosberg (HB 123) has the laudable goal of protecting Florida's senior citizens from being bullied, just how feasible is it in a community association context?  From some of the board and membership meetings I've attended over the years, it is not at all easy to spot who is the bully and who is the bullied and the reality is that sometimes the bully becomes the bullied and vice versa.

HB 123, if passed, would create a new law known as the "Stand Up for Seniors Act." The law appears to apply only to "55 and over" communities in Florida.

                             WHAT BEHAVIOR WOULD THIS LAW ADDRESS?

Bullying under the Act would be defined as "intimidation or harassment that causes a reasonable person to fear for his or her physical safety or property" and may consist of physical actions including gestures; cyberbullying; oral, electronic or written communication or any threat of retaliation for reporting of such acts.  Bullying can take place in person or can be done through the use of technology such as email, texts or the internet; this type of bullying is known as cyberbullying.                                                                                                                                                                              
Harassment is defined by the bill as any racist, threatening, insulting or dehumanizing gesture, use of data or computer software or written, verbal, or physical conduct that has the effect of substantially interfering with or disrupting a member's opportunities, peaceful enjoyment of his or her home or the association common areas, or association benefits.  A person who wrongfully reports an act of harassment in bad faith would be committing harassment.


                  WHAT IS REQUIRED OF ASSOCIATIONS UNDER THIS PROPOSAL?

1.    "55 and Over" associations would have to adopt and review at least every 3 years a policy prohibiting bullying and harassment.

2.    The association's policy must ensure that association members do not subject others to fear or intimidation and the policy must apply to all members.

3.    The  association's anti-bullying, anti-harassment policy must contain the following:

 (A)    A statement prohibiting bullying and harassment.
 (B)    Definitions of bullying and harassment that conform to those set forth in the law.
 (C)    A description of the type of behavior expected from each association member.
 (D)    A requirement that the association investigate any reported act of bullying or harassment.
 (E)    A list of penalties for people who bully and harass or who wrongfully accuse others of bullying and harassment.
 (F)    A procedure for receiving reports of an alleged act of bullying or harassment including allowing a person to anonymously report such an act.  A disciplinary action, though, could not be based solely on an anonymous report.
 (G)    A procedure for a prompt investigation of a report of bullying or harassment.

4.     After the association completes its required investigation of a report of bullying or harassment, the association must submit its findings to the Ombudsman who will then either send a written warning to the member upon the first offense; require the member to complete an anger management treatment program upon a finding of a second offense; or impose a $100 upon a finding of a third or subsequent offense.

                                   IS HB 123 HELPFUL OR JUST WINDOW DRESSING?

HB 123 contains a glaring omission inasmuch as it regulates the behavior of "Association members" but does not seek to address the behavior of abusive tenants, guests, visitors and other residents.  Even more troubling is the obligation being placed on volunteer boards to regulate civility inside their communities.  A board's role in a community association is to enforce the covenants.  Absent a clear violation of those documents, most boards are not well suited to exercise almost entirely subjective judgment to determine who is the perpetrator and who is the victim in many disputes.  Lastly, requiring associations to spend limited resources on investigations, some of which may result in inconclusive findings or findings that the complaint was unsubstantiated, creates a quagmire.

Bullies are pernicious and we have never been as exposed to them as we are today in various forms around the world.  Progress has to start somewhere but I am not convinced that residential senior communities in the Sunshine State should be required to take the lead in this fight. Perhaps our government officials should be the pioneers in this anti-bullying and anti-harassment crusade by setting an example of civility?
                                                                                                                                                                                                                                                                                                         

Monday, October 9, 2017

A Rude Awakening: Your Board May Not Have the Right to Screen Leases and Sales at All!

Even in the frenzy of post-Irma repairs, ordinary life continues and for most volunteer boards and professional managers that means screening applicants who wish to lease or purchase in their communities.

However, purchase and rental screening has become such a part of the fabric of community association life that some boards and managers have forgotten to confirm the source of authority for such activity.  Several boards were recently dismayed when I advised them that they do not have authority either to charge a transfer/application fee or to approve leases or sales at all.  They learned this information while they were in the midst of screening pending applications.

Their responses to that uncomfortable revelation included:

"Of course we can screen, we always have."

"Our manager told us we can screen and charge an application fee."

"We suspected we couldn't do it but it's a calculated risk we're taking."

The fact that your community may have a practice in place for charging a screening fee, requiring applications, running background checks and conducting personal interviews with potential new purchasers and potential new tenants does not make any of the foregoing legal unless your governing documents (and specific documents in some instances) provide your Board with this authority.  In fact, in two of these communities, the Declaration clearly specified that sales and leases were not subject to prior approval by the board only to prior notice.  In today's investor-friendly environment, more and more developers are creating initial documents which allow unfettered leasing and sales activity.  It is neither reasonable nor advisable for a board to assume it has the authority to screen sales and leases because its management company does the screening and collects the associated fees.  A responsible manager will urge the board to obtain the necessary legal opinion any time the question of legality arises.


In a Florida condominium, a transfer fee cannot exceed $100 per applicant (with spouses and a parent/dependent child being treated as one applicant) and a transfer fee cannot be charged at all unless the association has the right to approve a lease or sale and the fee is provided for in the Declaration, Articles or Bylaws.


                                                  Why is it important to be so cautious?


A cottage industry has naturally cropped up where some lawyers and law firms are initiating individual and class action lawsuits against boards and management companies for charging fees in excess of or in violation of the statutory limits.  Granted, there is a reasonable desire on the part of many volunteer boards and a high expectation on the part of many association residents to ensure that new purchasers and tenants are properly screened to avoid any potential threat to the safety, security or financial well-being of the community.  However, the framework to conduct such screenings must be authorized by the governing documents.  As for taking a calculated risk, given the potential to be ordered by a court to return illegal transfer fees taken over the span of several years, there is little doubt that confirming your authority or properly amending your governing documents to provide such authority is crucial.

Monday, October 2, 2017

A Different Kind of Blog Post: A Letter to My Children


I had planned another blog post for today about boards' screening ability regarding sales and leases. However, I woke up to the news of yet another mass shooting and loss of life; this time in Las Vegas. I sat down this morning and wrote the following email to my twenty-something daughter and son who live in LA and NYC respectively. To the extent that it can help other concerned parents like me, I am sharing it.

Dear Ryan and Lauren,

The four of us went to bed last night in three different cities and I venture to say that none of us had the specter of mass shootings on our minds before we closed our eyes. We all woke up this morning to the news that there has been mass carnage in Las Vegas due to a shooter who stuck an automatic weapon out of a window in a hotel we've previously stayed at and mowed down people who had just started listening to Jason Aldean.

 

There is not much I can add to the discussions that are sure to ensue regarding the Second Amendment, the NRA, mental health and more. In a country as large and "Type A" as ours is, it is not realistic to expect that anything significant will change. Months from now we will again go to bed not realizing the risks out there and whether or not one of us or our loved ones will draw the short straw by being in the wrong place at the wrong time.

 

What I can urge you to do is to live in the now. Previously you've heard me say this as a philosophy to reduce stress and enjoy the present. Now I see being present as having an additional bonus- a way for you to avoid danger.  We have all become so accustomed to avoiding eye contact with others (when was the last time you really looked at a homeless person), to having a running script in our heads with an endless to-do list or a recitation of worries about what happened at work today or will happen tomorrow, friend issues, etc.  That kind of thinking should be done when you are somewhere safe and you can zone out. When you are out and about, you need to be present. Look around. There are usually clues that something might be amiss if you choose to notice them. Don't sidle up mindlessly to a backpack, duffel bag, cell phone, laptop, etc. that appears to have been left somewhere. If you get on a subway and there is such an item just sitting there, get off that car and tell someone immediately. The same holds true in other venues such as restaurants, malls, concert halls, etc. The worst thing that can happen is you delay your travel by a few minutes or you risk the embarrassment of having your actions being seen as an overreaction. The best thing that can happen is you saved your own life and countless others. As for embarrassment, it is a wasted emotion and not one which should prevent you from listening to and reacting to the well-honed instincts you both have.

 

There are people who are very good at being present, vigilant and active without being paranoid or otherwise negatively impacting their enjoyment of life. For those people, noticing their surroundings keenly each day brings countless pleasant surprises: beautiful sunsets as they drive home, a flowering tree on their morning walk, a baby giggling wildly in the mall, a co-worker who looks happy. For these same people, that sense of awareness might also help them notice the suspicious backpack, the person on the subway whose eyes are darting wildly and who is wearing clothing that is unseasonal, the movie theater or restaurant that feels "off". If you walk into a store and there is no clerk at the front desk, leave. It could be that the clerk is in the bathroom, it could also be that something bad is going down in the back room. Walk around the block and come back when the clerk is back at his or her post. Humans evolved to avoid predators. Our bodies are vulnerable and we're not that hard to kill. We don't have fangs or claws or (for most of us) unusually thick hides.  We have our instincts and our brains and modern life is working in many respects to blunt the survival skills we do have.  

 

So what I am suggesting is take your noses out of your cell phones while you walk around in public. Notice the people and objects around you. When you choose a seat in a restaurant try to have a clear view of the door and the entrance/exit. In a public venue, always know where the exits are. There are other dangers besides active shooters and those can include careless people who start fires in packed, wood frame concert venues. If you see something unusual, say something. Act, don't remain paralyzed in an emergency as you ponder your options. 

 

I want you to enjoy every aspect of your lives. Of course, as your mom, I want you to be safe so you have decades of living ahead of you. If you take a little more time to understand the real risks out there and what you can do to safeguard yourselves and others, life will be all the sweeter.

 

Xo,

Mum