Sunday, December 30, 2012

Does your Condo, Cooperative or HOA Board count your money?

A blog reader recently raised the issue of association boards who charge fees for certain community services but only against owners who, in the board's estimation, "can afford it" while discounting or writing off those fees for others. While there is no reasonable debate that such a practive would be contrary to both the shared ownership statutes and most associations' governing documents, the question made me ponder just how often volunteer boards engage in the typical exercise of trying to figure out who are the "haves and have nots" in a community.

In my blog reader's HOA, the board decided to clean out the french drains in the community but only sent bills to the homeowners they knew could afford it. When I first read the email, I wasn't certain of the accuracy of the tale but upon further reflection, is such board logic really any different than employers who sometimes allow external factors to determine which of their employees "need" a bonus or salary increase more than others? That logic generally falls along these lines: "Susan is a single mother of two"; "Bob is a young, single guy"; or "Sally is close to retirement". We'd like to think that these kinds of decisions are based solely on merit but we all know the reality is quite different.

Is this selectivity practice in an association setting confined solely to this reader's community or is it more widespread than we may think? Some people will undoubtedly argue that a board can and should seek to help owners in need by leveling the playing field while others will argue just as vehemently that an association board does not have and should not have the latitude to count their members' money in this fashion.

How many of you have seen these kinds of decisions made in your community and what was the result? How many blog readers have been grateful or angry to be on the receiving end of this kind of disparate treatment? How many blog readers have served on a board that made decisions about who should pay and who should not when it came to certain community services?

Monday, December 24, 2012

Cell phone companies want to put up more towers in residential areas; what do our communities want?

I remember the first time I really got to know most of my neighbors in my Broward County homeowners' association. We were in the process of being wooed by a very large telecommunications company who wanted to convince us how swell it would be to have a 75-foot cell phone tower disguised as a giant flagpole with a car dealership-type flag directly adjacent to our community's entrance.

Despite the free cookies and large Chesire cat grins maintained achingly by the cell company ambassadors, none of us were buying into this vision. Why was my community not enthralled with the pitch? For some of us, our concerns centered on the aesthetics of viewing the unsightly structure on our daily departure and re-entry to the community. For others, their opposition stemmed from perceived health risks and a general outrage that big business was too lazy to situate a commercial structure in a more appropriate commercial location. Regardless of our individual reasons, we quickly got to know each other, got organized and the association hired counsel to fight the placement of this structure in a residential neighborhood.

Naturally, the cell phone company had their legal counsel try to bully and badger us but we were successful in our fight and the cell tower was ultimately located in a commercial location. I hadn't thought about that battle for quite some time until yesterday's front page article on the cell tower debate heading to the Florida Supreme Court. Apparently all our smartphones, tablets and other gadgets require a lot of juice and the cell phone companies would have us believe that the only space left to power them up is in or near our private residential communities and parks. The outcome of that case might see a lot more giant flagpoles and fake pine trees popping up in places they are not wanted.

While I enjoy my share of electronic gadgetry, I would undertake the battle again if my private residential community was in the crosshairs of big business. It will be interesting to see if other affected associations engage on this issue and follow a similar path to the one my community took. If nothing else, a common enemy can bring a warring community closer together than anything else. We still have neighbors who remain friendly until today because they put aside petty squabbles once they found themselves on the same side of the cell tower battle lines. Tecnhology is great but to most people, their homes are sacred. To read more on the Sun Sentinel cell tower article, click here:

Monday, December 17, 2012

Community associations and the growing identity theft crisis!

The Federal Trade Commission estimates that as many as nine million Americans have their identity stolen each year. Yes, you read that correctly...nine million and that number is growing!

None of us are truly insulated from the possibility of having our identities stolen unless we refuse to purchase items by check or credit card and never venture out of the house to the doctor's office or other location where our private information may be required. However, for those of us living in community associations, the threat may be even greater, particularly if sensitive information was gathered during the approval process and such information is not destroyed or, at a minimum, safeguarded.

Some but not all associations do run background and even credit checks on potential purchasers and renters in their communities. Often, a social security number, date of birth and enough other information to effectively steal an identity is requested on the application. The association uses this information to presumably undertake its due diligence and determine if the renter or purchaser poses any sort of real or financial threat to the community.

Assuming the association's governing documents provide the board with the authority to perform such scrutiny, the real concern then becomes what happens with that sensitive information provided by the purchaser or renter? Is it immediately shredded or is it tossed in the garbage where it can possibly be retrieved by an identity thief? If it is not destroyed, where is it stored and who has access to it? Is the information kept under lock and key with only limited access by a defined group of people or is it tossed in a drawer and no further thought given to its existence?

As the identity theft crisis continues to grow, boards and managers who come into contact with sensitive information must start asking the foregoing questions and creating useful protocol to ward off a potential problem. Individuals applying to live in or rent in a community association should inquire about how their personal information will be handled both during the approval process and afterwards.

Victims of identity theft spend countless hours and real dollars trying to clear their credit history and correct their financial resources. Horror stories abound about the steps needed to pick up the pieces in the most drastic identity theft scenarios. As a result, many insurance companies are now offering relatively inexpensive identity theft endorsements to standard homeowners' and renters' policies. Homeowners should ask their insurance agents about the benefits of this coverage and the costs. Boards who collect sensitive information should similarly speak to their insurance agents about what they can do to protect themselves and their residents from an identity theft incident.

It's never too soon to start thinking about ways to protect yourself and your community from this insidious problem.

Monday, December 10, 2012

How loud is too loud in your condominium, cooperative or homeowners' association?

Last night I attended the Aerosmith concert at the BB&T Center with my husband and some friends. In addition to being amazed that this group, and particularly its lead singer, is still rocking as strongly as ever, I left with my ears ringing. My husband, however, wasn't phased at all by the noise.

It got me thinking about some of the noise complaints we receive from folks in our communities. How often have noise complaints arisen in your community and how are they addressed? Every set of governing documents I have ever reviewed (regardless of the community type) contains a general nuisance clause. Many specify noise issues but all refer to the members' quiet enjoyment of their property being disturbed as an element of a nuisance.

Some noise issues are related to hard surfaces being installed without proper soundproofing and in areas that require noise absorbent material in order to safeguard the neighbors below. When that occurs, even normal daily activities resonate with more force than normal. Other times, the source of the problem is a resident's unwillingness to moderate the decibel level of their television, radio or other device. Some noise issues arise from pets left alone during the day, domestic disputes, excessive partying and occasionally, the noise is designed specifically to irritate a neighbor or neighbors where the community has become a battleground of sorts.

Sometimes, noise issues can and should be resolved between neighbors without bringing the association into the equation. When an owner does contact the association about a nuisance generated by noise, the association's first response should be to undertake some due diligence to determine if the noise has risen to the level of a general nuisance as defined under the governing documents and common law. These noise issues in a community can become complicated when the person making the complaint is perhaps more sensitive to decibel levels than are his or her neighbors. If none of the neighbors surrounding the unit/home in question, it is more difficult for the association to establish that the noise has risen to the level of a general nuisance. Moreover, sitting between a Hatfield and McCoy feud is an uncomfortable position for any board. This becomes even more vexing when one of the board members or perhaps even the board president is a Hatfield or a McCoy. Naturally, local ordinances on noise can be consulted to determine whether or not the noise in question violates municipal or county regulations.

So let me ask you again, how many noise complaints have arisen in your community and how did you handle them? What, can't hear me over the din?

Sunday, December 2, 2012

Is your Condo or HOA board hiding its light under a bushel? When was the last time you communicated the number of hours it takes to serve your members?

At every one of our Board Member Boot Camps, I ask those board members in attendance whether they advised their members that they were spending the better part of their Saturday at an intensive board member training session. In a packed room, only one or two hands are typically raised.

We often surmise why boards don't communicate the less than positive things they do but why wouldn't board members share with their members the amount of time they spend performing their duties on behalf of the community?

Boards often assume incorrectly that their members know about the number of hours they spend fulfilling their board duties. Discussions that take place at a meeting don't often reveal the hours of preparation that led up to that meeting. Moreover, as many of you already know, far too many members don't attend meetings and even fewer read the minutes of those meetings. How then can most association members have any sort of realistic idea of the time their board spends (or doesn't spend) to actually operate and administer the community? Why do most boards overlook the power of consistent and timely communication?

There is probably little harm and much benefit that could be accomplished in advising your members about time spent in the following manner:

-Hours spent attending a board member certification class

-Hours spent attending other educational classes designed to give you tools to assist your community

-Hours spent reviewing status reports and communicating with legal staff for matters being handled by association counsel

-Hours spent vetting service providers and managing those relationships to ensure continuing good service

-Hours spent responding to member and resident complaints, inquiries, etc.

-Hours spent directing professional management

-Hours spent researching various repair, improvement, maintenance, security and insurance items

-Hours spent overseeing various repair, improvement and maintenance projects

-Hours planning community events

-Hours spent maintaining the community website, newsletter and other communications portals.

Some boards do choose to send out a year-end summary and have been criticized for "electioneering activity". My recommendation is that boards should be communicating how they spend their time year-round and not just when elections are around the corner. Serving on a highly functioning board of directors requires quite an outlay of time and energy. Boards shouldn't assume that members know the amount of time being spent on their behalf. The fact is that most members don't spend much time thinking about the board or its activities unless something is terribly amiss in the community or the members are being asked to write a check.

Of course, if your board does start communicating about time spent, it goes without saying that your communications must be factual rather than boastful and designed to keep your members informed rather than simply to keep you on the board.

Sunday, November 25, 2012

Florida cases provide answers to readers' condo and HOA questions.

The following are some questions I have received from Blog readers and citations to the Florida cases that provide the answers.

What is the proper way to suspend an owner's voting rights?

The suspension of voting rights must be listed on the agenda of a properly posted and duly noticed Board of Directors meeting. After such meeting is held, the meeting minutes must specifically identify each unit which had its voting rights suspended. A letter must be sent to each owner whose rights were suspended after such meeting advising them of the suspension. The Board cannot pass a rule or make a policy that the voting rights of any owner can be suspended automatically without benefit of the noticed meeting, listing in the agenda and a letter after the fact outlined above. See: Leonardis v. Porto Fino Gardens Association, Inc. Arb. Case No. 2011-02-8981 (Chavis/Summary Final Order/August 18, 2011).

Moral of the story: do it right the first time. It's not that difficult to post notice of a meeting, create a proper agenda and prepare minutes and a letter to suspended owners.

Is an email submission of a candidate information sheet considered proper notice to the association?

In the case of Cohen v. Harbour House (Bal Harbour) Condominium Association, Arb. Case No. 2012-02-3139, an owner submitted a candidate information sheet (resume) in the body of an email sent to the association a few minutes before midnight on the deadline date. The association did not include the resume with the second notice of election as the association believed that the candidate information sheet was not properly submitted pursuant to statute. The arbitrator agreed and held that the rules require a candidate information sheet to be provided on a piece of paper no larger than 8 1/2 x 11, not in an email.

Moral of the story: if you are going to submit a candidate information sheet, make sure it is on a piece of paper in the required size and don't wait to the last minute to submit your information. In this case, had the owner submitted several days ahead of time, there would have been time to resubmit a proper form to be included in the election mailing.

Is an association required to enforce the provisions of its Declaration?

I am going to give you the typical lawyer response: It depends! In Heath v. Bear Islands Association, Inc., 706 So. 3d 39 (Fla. 4th DCA, 2011), the association's declaration provided that the association "may, but shall not be required to, seek enforcement of the Declaration." An owner sued the association to compel enforcement of the declaration. The trial court entered summary judgment for the association and the District Court of Appeal affirmed. The appellate court stated that the plain language of the declaration gave the association the discretion as to whether or not it would enforce the declaration.

Moral of the story: while it is not advisable for an association to ever ignore its governing documents, there may be certain documents that make enforcement discretionary as opposed to mandatory. In those circumstances, whatever decisions the Board makes must be uniform and the Declaration cannot be selectively enforced.

Sunday, November 18, 2012

How much do you really want to know about what is going on in the condo unit or home next door?

The City of Miami Beach has once again become a mecca of sorts for the film industry. Apparently, the city has provided a very welcoming environment in terms of the permitting process and the weather usually cooperates even when the neighbors don't. More and more films and TV programs are being filmed in Florida, particularly South Florida.

Ironman III, Magic City, Burn Notice and The Real Housewives of Miami were all shot in Miami Beach properties. Other Florida cities have similarly been the stage for both big and small screen entertainment. Ask some of the neighbors living next to these pseudo movie studios masquerading as single family residences and you might find that they are not entertained at all.

Many of the residences being used are outside the confines of a mandatory community association but others are not. Recently one of the partners at my Firm was asked what could be done when it was discovered that "adult enterntainment" was being filmed in one of the investor-owned penthouses that was currently in foreclosure. That scenario provided a double whammy of the filming schedule bothering some of the neighbors and the type of filming bothering others.

Many of the homes in my HOA have a distinctly northern look which makes them particularly appealing since we do not have the northern climate to match. Several of them have been used over the years for catalogue shoots and TV commercials. I never perceived it as having been much of a hassle but then again, they weren't right next door to me. Our association did create protocol for homeowners wishing to rent out their homes for a commercial shoot which included a deposit for the common areas, an indemnification should anyone or anything be injured, and required hours for entry and departure to minimize the community's inconvenience.

At what point does the use of a condominium/cooperative unit or a home for a commercial shoot become a business? One shoot a year certainly doesn't turn the use from residential to commercial but what about 13 shoots a year or something in between? As long as the inventory of abandoned homes and money-strapped owners remains, we are likely to see more creative uses of real property in Florida and elsewhere. Sometimes this use will be open and obvious; others will not be known until you see the trailer!

Sunday, November 11, 2012

Do Florida's election woes match your community's?

We made it through another election cycle with the state of Florida once again garnering some national attention about the way we handle our voting procedures.

Some of the criticism centered around incredibly long early voting lines (a lawsuit has actually been filed), an overly complicated ballot with 11 constitutional amendments and a deadline for absentee ballots that didn't allow Florida to tabulate votes as quickly as most other states. Both Oregon and Washington State have all mail-in voting systems which leaves room for debate as to how Florida can improve next time around.

This process also lends itself to comparison with our association election process which is soon to start in most condominium, cooperative and homeowners' associations around Florida. November-March is generally regarded as the height of annual meeting and election season in Florida's shared ownership communities. While Florida condominium and cooperative elections are highly regulated by statute, there is still room for dysfunction to creep in. HOAs are even more vulnerable to election problems.

Just how easy a process is your Florida association election?

Are notices provided timely?

Is information conveyed in an easy-to-understand manner?

Are various communication channels used to urge people to attend the meeting and cast their own votes?

Are arrangements made for disabled owners to easily cast their votes?

Is an impartial election committee in place to count the votes?

Are the ballots secured prior to the night of the meeting?

Is all candidate information provided to the membership?

Are the candidates listed properly on the ballot?

Are proxies (where applicable) properly prepared and easy to read?

If we still struggle with getting our local, state and federal elections right in Florida, is it any wonder that our private residential communities continue to struggle as well when it comes to electing their representative boards? Clearly, there is room for improvement in both arenas.

Sunday, November 4, 2012

Does your community prohibit solicitation?

Most of us think we know what is meant by those signs that have the word Solicitation with a red slash through it but do we really all see that sign through the same prism?

The dicitionary defines solicitation, in part, as: to make a request, application, or entreaty to (a person for business, support, etc)

Many associations do have a rule prohibiting solicitations but what is the basis for such a rule? Ostensibly it would be to protect privacy in members' homes, mailboxes and other personal property such as your car's windshield. Perhaps another goal is to enhance security in the community by deterring outside vendors from entering for the purpose of solicitation. What about your neighbors or vendors already inside the community who might take the opportunity to announce their business or to seek your support on an issue?

Are there other purposes for a comprehensive non-solicitation rule though that aren't as useful or innocent as the goals outlined above? There are many types of solicitation that occur in a community association setting. The following are just some that I have seen firsthand:

Girl scouts selling cookies

Jehovah's witnesses "selling" their ideas

Invitations in my mailbox to a jewelry party being hosted by a neighbor

Flyers on my car for window tinting, car detailing and pizza delivery

Recall committee members soliciting my vote

Neighbors collecting proxies for an upcoming election (I live in an HOA)

Schoolchildren selling holiday wrapping paper as part of a fundraiser

Neighbors trying to sell their homes via a flyer as opposed to hiring a broker

Non-solicitation rules raise several important questions. Should there be a distinction between outside solicitors and solicitors who live in the community? Should there be a distinction between types of solicitation? Should solicitation be allowed when it is in being done to support a charity or school or other "good idea"? Do any boards try to use the non-solicitation rule to stop people from mounting a challenge against the board?

If your community wishes to make some distinctions between what constitutes solicitation and what behavior will be tolerated and what will not, the more specific the rule the better. Enforcing a generic rule in an arbitrary or less than uniform manner will undoubtedly subject the board to challenge as well as frustrate the goals that led to the rule in the first place.

Sunday, October 28, 2012

Do developers give thought to long-term governance in the communities they build?

It is no secret that developers build communities with one main goal in mind: selling out their inventory.

While development in Florida and many other parts of the country has dwindled considerably over the last few years, now is the time for reputable developers to give some thought to new ways to ensure success for the product they are peddling.

Most purchasers look at all the obvious things: size and location of the community pool, reliability of the security measures being offered and model types for their desired unit or lot. A potential purchaser might not give much thought prior to the closing about how easy it will be to elect a board, whether the assessments are artificially low, the transparency (or lack thereof) of community operations and whether or not the association's governing documents are properly maintained and easily accessible.

Developers who really want their customers to be talking about how wonderful they are years after transition would be well advised to do the following:

-Create a streamlined governing body. Creating communities with 22 sub-associations and a master association might be easier for the developer to manage fiscally but it is a nightmare of duplication and confusion down the road which is almost impossible to untangle as people identify far too greatly with their "building" as opposed to the community overall.

-Create governing documents with practical realities in mind. Don't make it difficult and/or impossible to amend the governing documents by requiring lenders' consent. Why would you ever subordinate the association's lien rights to lenders? Many developers can secure construction financing without doing so and so can you.

-Be a pioneer and understand that technology is here to stay and often cuts down on expense and time for communities who utilize it thoughtfully. Create an association website and upload the governing documents for inspection convenience. Create reasonable rules and regulations that allow the use of smartphones, scanners and tablets so owners can make their own copies of documents of interest without expending funds and without having the association undertake any labor in that regard.

-Do not create a budget with artificially low amounts to entice purchasers. Your customers certainly want to make an informed purchase decision and you deny them this right when they are unaware of the costs it takes to really provide the common area services you deliver while you are still building homes.

-Take out your calculator when creating your documents to ensure that the percentages of ownership actually add up to 100%. One of the most egregious cases of developer error I've seen was in a large condominium where the percentages of ownership did not add up to 100% and were inconsistent with the surveys attached to the declaration.
-Create a real sense of community from the beginning. Rather than just highlighting your sales office, set up a Welcome Committee that is run by the residents and has nothing to do with your remaining sales. Hold regular meetings and set the tone for inclusion and transparency.

The economic woes over the last few years have given developers ample free time to consider new ways of creating planned communities that will support long-term enjoyment by the residents. It all starts with a plan that makes sense for those who live in the community and not just those who buy.

Sunday, October 21, 2012

Two legal concepts that are misunderstood by many community association members.

A blog reader wrote to me the other day and asked what she could tell a member of her community who claimed he was not bound by the association's governing documents because he had never read them.

I introduced my reader to the concept of constructive notice; just because an association member has never actually read the documents does not mean he or she does not have constructive notice of the terms and provisions of those documents if they were properly recorded in the Official Records of the county where the association property is located. The concept of constructive notice imputes knowledge to a person even though actual notice was not personally delivered to him or her.

In the case of a mandatory association's governing documents, those documents must be recorded in the Official Records to be effective these days and purchase contracts include riders referencing them while title insurance policies similarly list them. Moreover, in a condominium purchase, the underlying covenants are identified by Official Records Book and Page number right on the deed. With all this notice that recorded restrictions exist, there is simply no wiggle room for an association member to legitimately claim a lack of knowledge of their existence. Since association members are already seen as having constructive notice of the governing documents, it is in their best interests to obtain actual knowledge by reading them both before and after purchase.

Another legal concept that creates some confusion in an association setting is the issue of who can legally bind the association? The term apparent authority is used when a reasonable person would understand that an agent had the authority to act on behalf of a principal. In a troubled community association, a question that often arises is, "how could our President have gotten us into such an awful contract?" A landscaper, roofer and any other vendor who is doing business with an association, can reasonably expect that an officer or director of that association has the authority to enter into contracts. It is only when such contractor is put on notice that he or she must obtain actual authority (ie a Board Resolution to enter into the contract) that apparent authority can no longer be relied upon to ensure that the contract remains intact.

Both of these legal concepts rely on passivity: constructive notice imputes knowledge while apparent authority imputes authority. In order to avoid the problems that can accompany both of these concepts, association members would be well advised to actually read the documents that govern their association and boards would be well advised to establish protocol to avoid detrimental, unilateral action by any one board member hiding under the cloak of apparent authority.

Sunday, October 7, 2012

Do you know how you will vote on Florida's 11 upcoming constitutional amendments before entering the Ballot Box?

On November 6th, you will hopefully step into a ballot box somewhere in Florida to make your voice heard along with your fellow citizens. In addition to deciding on your president, vice president, senator, representative and retention for several members of the Judiciary, this year's ballot will also contain eleven (11) weighty amendments that merit some deliberation beforehand.

Florida has had six (6) different constitutions throughout its history: 1838, Ordinance of Secession in 1861, 1864, 1868, 1885 and our current constitution which was ratified on November 5, 1968. Florida's Constitution is a living document which can be amended five ways although the two most frequently used are: citizen petition or a Joint Resolution of the Legislature passed by 3/5 of each Chamber.

None of the eleven (11) amendments being proposed this year were placed on the ballot as a result of a citizen petition. If you haven't given much thought to who is sponsoring these eleven (11) amendments and why, the Community Advocacy Network (CAN) will be holding a FREE Luncheon and Town Hall Meeting this Friday, October 12th at the Katzman Garfinkel & Berger Law and Learning Center in Margate. Many of the sponsors of these amendments along with spokespersons from groups supporting and opposing same will be attending.

Amendment One is Florida's response to Obamacare inasmuch as it would prohibit laws or rules from compelling any person or employer to purchase, obtain or otherwise provide healthcare coverage. It is being sponsored by Senator Haridopolos and Representative Plakon. Opponents claim that this amendment, if passed, might very well be moot as the Supreme Court has already upheld the constitutionality of the Federal Health Care Plan.

Amendment Six provides that public funds may not be expended for any abortion or for health insurance coverage of abortion. This amendment is being sponsored by Senator Flores and Representative Baxley.

Amendment Eight deletes the prohibition against using revenues from the public treasury either directly or indirectly in aid of any church, sect or religious denomination or in aid of any sectarian institution. This amendment is sponsored by Senator Altman and Representatives Plakon and Precourt.

Amendment Nine provides for property tax relief for the surviving spouse of a military veteran who died from service-connected causes while on active duty or to the surviving spouse of a first responder who died in the line of duty. This amendment is sponsored by Senator Norman and Representative Harrison.

Blog space allows us to only touch on a small sampling of the proposed amendments. However, at the Town Hall, guests will be provided with full summaries of each amendment along with the opportunity to pick the brains of the folks sponsoring, supporting and opposing these changes. There will also be a discussion of upcoming community association legislation and what your legislators think you need and want in that regard.

Wednesday, September 26, 2012

How to make change really happen in a community association

For the last few weeks, I have been communicating with a gentleman who lives in a very large planned community: one of those developments with so many sub-associations and residents that it could certainly be incorporated as its own municipality at some point.

This man (we'll call him Mr. Smith) outlined a litany of serious problems in his community and told a tale of graft, greed and corruption that was hard to believe. Mr. Smith had been doing battle with a group that he described as operating as a de facto master association with no documentary authority whatsoever.
In order to get better, he advised that the community needed a new board, new management and new lawyers. Mr. Smith clearly had goals but no idea how to accomplish them.  My first problem when trying to help Mr. Smith was the need to sift through emails that consisted of no less than 20 paragraphs each time. The second challenge was getting Mr. Smith to answer basic questions about what he had previously done to effectuate change, how many of his neighbors supported his efforts and what kind of resources he had amassed to do battle.
At this point, Mr. Smith has little more than a list of serious complaints and a desire to change his community. What he needs is a strategy, some resources and an advocate to assist him. At this point, I am not confident that all of Mr. Smith's assertions are correct nor am I confident that I can assist him. What has resulted from my communications with him is the following checklist for individuals wishing to make real changes in their community and the shortest, most efficient path to take.
1.          Always start with communication. If you suspect things are awry, schedule an appointment with the board and see if you can sit down and have a dialogue. It is easier to do this outside an open meeting where the board may feel attacked in front of the membership. If you are given the chance to speak privately with the board, don't start out with accusations; start with questions and listen.

2.         If you cannot speak with the board or those communications don't result in change, the next step is to start gathering information.  Owners are entitled to review the association's governing documents so review them. It would be more productive to have a list of specific documents you wish to inspect as opposed to a 'fishing expedition' that could take days or weeks. If you are denied the opportunity to inspect your the association's official records, keep track of all communications in that regard.
3.         Speak to your neighbors and see if they have had similar experiences and observations. This does not mean slandering the board, making wild accusations that are unsupported or other nonproductive communications. If you are to gather your neighbors' support, you will have to present yourself as reasonable, concerned and legitimate. If none of your neighbors agree with your concerns, that is the first sign that this problem might be exclusive to you and your sensitivities or your unique perspective. If that is the case, your chances of changing an entire community to suit your needs is slim.
4.         Contact the Division and/or Ombudsman's Office if the nature of your complaint is the proper subject matter for either of these agencies. These resources are free but your expectations must be reasonable about the length of time it may take them to assist you and their ability to fully resolve the problem.
5.         Ask yourself how much you are really willing to spend to make the changes you think are necessary. Most attorneys are not likely to take your case on a pro bono basis and contacting your legislator's office to fight a personal battle with your board is not likely to accomplish your goals either.
6.         When you find an attorney with whom you'd like to pursue the matter, keep your communications clear and concise. Avoid editorializing and keep your assumptions and accusations to a minimum. Stick to the facts so he or she can map out the most effective strategy for you. If more than one attorney tells you that you have little to no chance at successfully pursuing your matter, you should listen.

Change can happen in community associations that are in need of it. I've seen and personally assisted individuals making those kinds of changes. However, the folks who are successful at this always have the following in common: they are reasonable and rational, they have significant community support and resources and they have taken the time to map out a sound strategy and follow it diligently to the end. The old saying: "If you don't know where you're going, any road will take you there" really holds true in these situations.

Sunday, September 16, 2012

Is there any such thing as a 'good surprise' in an HOA?

This past weekend, my husband and I decided to go house hunting for my brother and his wife. There were two new townhouse developments going up near our community and we decided to check them out and report on our findings. The first community seemed like a really good fit for my brother and his family but we decided to take a peek at the second community just to compare.

When we tried to turn into the parking lot for the second development, we were directed to turn around and go back to our own community which was apparently hosting the developer's sales center in our Clubhouse! Imagine our surprise when we heard this news. The sales center had nothing to do with our community at all. When we trudged down to the Clubhouse and asked why this developer would have a sales center inside an entirely different community, we were told that a "deal" had been worked out with the country club months ago.

Was I annoyed that our HOA board had not informed us that our 24/7 manned security was perhaps not so secure now that the community would be open to the general public to accommodate a sales center for a community down the road? You betcha. At the very least, it would have been nice to have been informed of the situation without having to find out about it by chance. As with most things in life though, it is usually easier to ask for forgiveness than for permission so perhaps that was our board's reasoning.

After I simmered down, I realized that in the 4 months since this questionable arrangement had already been in place, nothing bad had occurred in my community. It was business as usual, reinforcing the old maxim that ignorance is bliss.

I have several options at this point. I can continue to fume over the fact that we, as members, were not made aware of this situation and let everyone in my community know about the surprise I stumbled upon. I can overlook it entirely as the Sales Center will be relocated outside our community at the end of November according to the nice sales lady with whom I spoke. I can also look for the positives by acknowledging that the Sales Center has done no harm and might have actually exposed our community to potential future buyers who were more impressed with our community than the one they were trying to visit. No, I have not yet made up my mind about the path I will ultimately take but I am leaning towards the last option.

This experience has reminded me as an association attorney what others might feel about their HOAs on a daily basis. While it is not impossible, there is rarely a joyful surprise in an HOA. More often than not, the surprises in HOAs are of the variety I've described above where boards have taken actions or refused to take actions that might surprise, shock or dismay the members. Of course, the reaction to those surprises are what define who we are as members and as people.

Sunday, September 9, 2012

Why does the mention of Section 8 tenants panic some communities?

How many people are under the misconception that Section 8 Housing can be found "somewhere else" but not behind the gated walls of many of Florida's well-manicured condominium, cooperative and homeowners' associations? Think again. You might be surprised to find Section 8 tenants living in beachfront condos and 5-bedroom homes in country club communities.

The Housing Choice Voucher Program sponsored by the Department of Housing and Urban Development (HUD) is more often known by the name Section 8. Qualified applicants who meet certain income requirements receive vouchers used to subsidize the cost of housing. HUD's goal is to provide housing to low and very low income families. Generally, the family's income cannot exceed 50% of the median income for the county or metropolitan area in which the family chooses to live.

Here's the part that most folks don't understand. The family that is issued a housing voucher is responsible for finding a suitable housing unit of the family's choice where the owner agrees to rent under the terms of the Section 8 program. These rental properties must meet certain minimum standards of health and safety but other than that, if the family and the landlord agree, any property is conceivably eligible to take part in the program.

Here's where your community comes into the equation. It is no secret that many owners have experienced or are experiencing financial difficulties in many communities. Some of these owners traditionally rented out their homes or units and others are now being forced to do so as a result of the economy. Section 8 tenants are looking more appealing to many landlords since the Public Housing Agencies for the various counties are a reliable source for their share (usually about 2/3 while the tenant pays 1/3) of the rent each month.

For properties in more upscale communities, meeting the government's criteria for health and safety is not really an issue. Also, the housing voucher is generally larger for properties with more space to accommodate larger families so these upscale properties fit the bill in that regard as well. Owners who are intereseted in participating in the Housing Voucher program can list their properties at

The way this works is that the family and landlord sign a lease. The landlord and the Public Housing Agency sign a housing assistance payments contract that runs for the same time as the lease agreement. Some associations are now trying to deny leases where the tenant will be receiving Section 8 assistance. Boards should not attempt to do so without speaking to their association attorney to determine if such denial is legal and supported by their governing documents.

For some communities, having Section 8 tenants has been a positive experience as it has kept homes out of foreclosure. Another added bonus is the fact that those same Public Housing Agencies who pay their share of the rent timely each month must also pay if the owner of the property becomes delinquent in the payment of his or her assessments to the association. Some Public Housing Agencies have tried to argue that the demand for rent statutes do not apply to them but this argument has been successfully defeated in court. Lastly, housing experts say that Section 8 tenants in more upscale communities have benefitted from exposure to communities they otherwise would not have known.

The mention of Section 8 Housing need not strike terror in your hearts. Get informed and discuss the pros and cons of the program with your association attorney before making decisions or taking action.

Monday, September 3, 2012

An insurance dispute with Citizens may require you to travel to Tallahassee

The Castle Beach Club Condominium Inc., a Miami condominium association, sued Citizens Property Insurance Corporation for breach of contract over a disputed insurance claim. The case was originally filed in Miami but Citizens sought to transfer the suit to Leon County (Tallahassee) by invoking Florida's "home venue privilege".

On August 1, 2012, the Third District Court of Appeals affirmed the trial court's order granting Citizens' request to transfer venue up to Leon County. The Court did this because it found that Citizens:

Is a state entity based on language in the Citizens enabling statute which provides that Citizens is a "government entity that is an integral part of the state...not a private insurance company."

There was no exception to the home venue privilege presented; and

There was no waiver by Citizens of its home venue privilege

Castle Beach Club Condominium argued that the Florida Legislature did not intend for the home venue privilege to apply to Citizens even though the enabling statute (Section 627.351(6)(a)1, F.S. ) is silent on the issue. The 3rd DCA ruled that in the face of such statutory silence, the burden was on the condominium association to prove that the privilege was not meant to apply and that burden of proof was not met. This does leave the door open for our Florida Legislature to address whether or not it wishes to allow Citizens Property Insurance Corporation to retain this kind of legal advantage in the upcoming 2013 Legislative Session.

Castle Beach Club also argued that Citizens is a state entity but not a state agency or state subdivision and thus, it should not be entitled to home venue privilege. The Court rejected that argument based on the enabling language quoted above. Interestingly, this same Court declined in 1979 to grant home venue privilege to the Florida Insurance Guaranty Association (FIGA) after concluding that it was a business entity and "not an arm of the government". When you visit FIGA's website and click on their Frequently Asked Questions, the following is the answer to What is FIGA:

FIGA is part of a non-profit, state-based, statutorily-created system that pays certain outstanding claims of insolvent insurance companies. By paying these claims, guaranty associations protect policyholders and claimants.

That description certainly sounds more like a governmental entity than a private business entity but the current case law says otherwise.

Lastly, Castle Beach Club argued that even if Citizens did have home venue privilege, it had waived that right due to the fact that it had previously litigated similar disputes in Miami-Dade County. The 3rd DCA disagreed with this logic and countered that a waiver of the home venue privilege could only occur through actions in the same case, not different cases.

What exactly could this ruling mean for your condominium, cooperative or homeowners' association as well as for individual Citizens policy holders?

Frankly, it is another reason not to feel great about being a Citizens policy holder. It means you might have to worry about trekking up to Tallahssee should you ever dispute a claim with Citizens. It means that should Citizens decide its venue victory in the Castle Beach Club case is worth duplicating, the vast majority of Florida policy holders can expect to incur additional hassles and expenses to puruse their rights. Some associations may file in Leon County right from the start as a result of this case and others may continue to file locally and hope that Citizens doesn't move for a venue change or that the Florida Legislature amends the enabling statute to waive this privilege.

Isn't being a Citizens policy holder difficult enough at times without the added burden of home venue privilege now being thrown into the mix?

Saturday, August 18, 2012

Saving for a "rainy day": funding community association reserves

Recently I was interviewed for a story in Kiplinger business magazine about what new condominium buyers should be considering prior to making their purchase. The list I provided was long but at the top was whether or not the proposed community had fully funded reserves.

Why is this so important not only to potential new purchasers but to existing owners? Fully funded reserves usually allow communities to meet expected and unexpected financial challenges without the need to specially assess the members. Those communities who had funds in reserve during the tumultous hurricane seasons a few years back fared much better than their reserve-less counterparts.

Still reserves can be a dirty word in associations for some folks. There are those who fear having any sort of money "lying around" for the board to use even though Florida statutes require a membership vote to use reserve funds for non-reserve purposes. There are other people who trust the board but don't trust that they will live to see the benefit of the repairs and maintenance for which the reserve funds are being held.

Both views are, in my opinion, shortsighted and not in the best interests of the membership. A community with full reserves can be a lot more attractive to potential purchasers than a community with older components and no financial cushion. A community with full reserves can also provide much-needed peace of mind to existing residents.

Even folks who understand all the benefits of reserve funding still find themselves confused over the details such as:

What community components merit reserve funding?

What percentage of the membership is needed to waive reserves?

What is the process to waive reserves?

What does it mean to "pool" reserve funds?

What is a Reserve Study and is it really needed?

If you are interested in the answers to these questions, the law firm of Katzman Garfinkel & Berger (my Firm) and Association Reserves are co-sponsoring a Webinar this Wednesday, August 22nd at 2:00 pm (EDT) and 4:30 pm (EDT). Join us from the comfort of your home or office and learn more than you ever wanted to know about reserve funding. Registrants will have the opportunity to participate and ask questions. To register for either time, click this link:

Monday, August 13, 2012

Association as Employer: what laws do you need to know about?

We don't often think about community associations in the context of labor law but the majority of associations do have at least one employee and some large master associations have dozens. The largest association employer I ever met actually bought a building to house its more than seventy-five association employees.

Even if you have only one employee or as many as a small company, your board needs to understand that you have duties and responsibilities to those employees under both federal, state and local laws. For purposes of this blog, we'll stick with just the Federal and Florida laws that will impact associations who have at least one employee. There are many more laws that need to be considered when the number of people an association employs goes beyong the one-person mark.

For associations that have one or more employees, the law firm of Christine Hanley & Associates ( has advised that the following laws apply:

Fair Labor Standards Act of 1938. This law establishes minimum wage, overtime, record-keeping and youth employment standards. This law also prohibits wage discrimination baed on sex as well as prohibits retaliation against employees who exercise their rights under this Act.

Occupational Safety and Health Act of 1970. This law establishes minimum workplace safety standards for private sector employers and prohibits retaliation against whistleblowers.

Fair Credit Reporting Act of 1970. This law promotes the accuracy, fairness and privacy of informatoin in the files of consumer reporting agencies. This law prohibits employers from using a third party to obtain a consumer report on an applicant or employee unless the individual gives authorization by signing a separate disclosure and consent form. This law also requires an employer to provide the applicant with a copy of the consumer report and written summary of rights before denying employment or taking any adverse action based in whole or in part on the consumer report.

Employee Retirement Income Security Act of 1974. This law establishes minimum standards for most voluntarily-established health and welfare benefit and pension plans in the private sector. This law requires employers to provide plan participants with information about plan features and funding. This law also imposes fiduciary responsibilities on those who manage and control plan assets and requires plans to establish a grievance and appeals process.

Immigration Reform and Control Act of 1986. This law prohibits the employment of individuals not authorized to work in the U.S by requiring employers to verify the identity and employment eligibility of all employees.

Employee Polygraph Protection Act of 1988. This law prevents employers from requiring or requesting employees to submit to lie detector tests either for pre-employment screening or during the course of employment, with certain exceptions. This law also prohibits retaliation against an employee or applicant who refuses to take a lie detector test.

Uniformed Services Employment and Reemployment Rights Act of 1994. This law protects civilan jobs and benefits for veterans and reservists. This law requires employers to re-employ returning service members in the job that they would have attained had they not been absent for military service with the same seniority, status and pay, as well as other rights and benefits determined by seniority. This law also requires employers to make reasonable efforts to accommodate a disability which has been incurred or aggravated during military service. Lastly, this law requires employers to make reasonable efforts (such as training or retraining) to enable returning service members to refresh or upgrade their skills to help them qualify for re-employment.

Florida's Minimum Wage Act. This law establishes state minimum wage standards for employees.

Florida's Unemployment Compensation Law. This law provides monetary benefits to individuals who are unemployed through no fault of their own. This law suggests that employers should establish standards of conduct for employees and implement a 90-day probationary period for new hires.

Florida Health Insurance Coverage Continuation Act. This law provides employees and covered family members not covered by COBRA with a temporary extension of group health care coverage under certain circumstances.

The foregoing laws impact associations who have even just one employee. Naturally, the more employees an association has, the more government regulation to which it will be subjected. Associations with two or more employees will be subject to the National Labor Relations Act of 1935, the Immigration and Nationality Act of 1954 and the Florida's Workers' Compensation Law. If an association has fifteen or more employees, it will be subject to Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act of 1990 as well as the Florida Civil Rights Act of 1992.

This blog is not meant to discourage associations from hiring employees. It is meant to advise associations and their managers that hiring employees is a serious business, subject to much government regulation. It is absolutely essential that associations establish employee protocol that complies with all pertinent statutes and ordinances. In other words, call your attorney before placing that ad for your next employee!

Sunday, August 5, 2012

Do you know how Life Safety Upgrades are adopted in Florida and around the country?

Have you ever been confused by the Life Safety jargon that applies to your multifamily community or your individual unit/home? Engineered life safety systems, fire flow requirements and uniform elevator keys may not be lingo with which you are entirely comfortable or even familiar. Are you even more distressed by the hefty bills that typically accompany any conversations with local building and fire officials using this terminology? You may even have wondered at some point, who has the final say in what your building's components need to look like and why. If you haven't been able to figure out the specifics, it's not a surprise. It is not in the local authority's best interests to involve individual Floridians let alone their representative associations in the political and rulemaking processes that affect their wallets and ultimately their lives; doing so would take more time and money and delay the process.

In many countries, fire safety codes and standards are drafted, debated and ultimately adopted by their federal governments. Not so in the U.S. where our Constitution leaves this up to our individual states. Now if our states were writing their own building safety standards (even knowing that standards would vary from state to state) we could still enjoy some level of comfort. However, that is not the case either and our states instead use "model" codes that are written by private organizations. The states may adopt these "model" codes entirely or with amendments. Ultimately, legislative bodies within local states and jurisdictions will have the final say, and the result might be inconsistent approaches across our country. As such, your financial burdens and life safety protections might vary widely if you live in New York or New Jersey, Tennessee or Texas and so on.

One of the private organizations that writes fire safety standards is the National Fire Protection Association (NFPA). In the state of Florida, we are required by statute to adopt the recommendations this group makes every three years almost without question. We can add even greater restrictions to what they recommend but rejecting the NFPA's proposed rules is basically out of the question. Just who is this group then? Well the mission statement on their website reads as follows:

The mission of the international nonprofit NFPA, established in 1896, is to reduce the worldwide burden of fire and other hazards on the quality of life by providing and advocating consensus codes and standards, research, training and education.

Not surprisingly, their Board of Directors and their Officer Roster are heavily comprised of folks whose companies produce the products (sprinklers, elevator components, alarms, etc.) that are all needed to comply with their triennial recommendations. There is no doubt that this same group is also comprised of folks who have made it their life's work to protect public safety. However, in the absence of a legislative review of a private organization's recommendations and in the absence of any meaningful citizen input, we have no current checks and balances in a process that impacts lives and our economic welfare.

Section 633.0215(2) of the Florida Statutes reads as follows:

Florida Statutes, Section 633.0215(2): The State Fire Marshal shall adopt the National Fire Protection Association’s Standard 1, Fire Prevention Code but shall not adopt a building, mechanical, or plumbing code. The State Fire Marshal shall adopt the Life Safety Code, Pamphlet 101, current editions, by reference. The State Fire Marshal may modify the selected codes and standards as needed to accommodate the specific needs of the state. Standards or criteria in the selected codes shall be similarly incorporated by reference. The State Fire Marshal shall incorporate within sections of the Florida Fire Prevention Code provisions that address uniform firesafety standards as established in s. 633.022. The State Fire Marshal shall incorporate within sections of the Florida Fire Prevention Code provisions addressing regional and local concerns and variations.

A better approach might be to require the State Fire Marshal to present a report to the Florida Legislature every three (3) years outlining the proposed changes (before the changes are adopted), and how such changes will impact the specific needs of the State. From there, the Legislature can choose whether to adopt a particular change. I can already hear the bureaucratic criticism that this cannot be done but how would such a report truly be a burden on the Fire Marshal? Surely, this Office can accomplish this feat every three (3) years to ensure that the changes we adopt triennially are not unduly burdensome and actually accomplish reasonable goals. It would also be interesting to note how many times the State Fire Marshal has adopted the NFPA's Fire Prevention Code by blind reference with no additional modifications as needed or requested by the local citizenry. After all that is the easy thing to do but is it the wise thing to do for Floridians and others whose states handle such an important matter in a similar fashion?

Sunday, July 29, 2012

Passing the Baton: Tips on Getting the Next Generation of Community Association Leaders Involved

This is the final blog in my three-part series on how to cultivate new leaders in your community association.

Perhaps you're tired of seeing the same old faces sitting up at the front of the room at board and membership meetings. Maybe you own one of those faces and are tired of being up there, waiting for reinforcements to come in. We all recognize that an infusion of new energy, ideas and talent can stimulate any organization whether it's a business, a sports team or even a community association. The real question is: How do you attract that new talent?

If we are talking about a business or a sports team, the answer is easy: recruit them with a lucrative offer. That is not an option for community associations seeking to get new talent on their boards so communities must be a little more creative when trying to get folks involved.

The first step is to speak to the next generation in a manner that appeals to them. If your board is looking to pass the baton, you should be making your roles look attractive to that busy mom or energetic new owner. First, are you reaching out to them in a medium that is most likely to catch their attention?  Newsletters are great but busy folks aren't as likely to read those as they are to read an email or a text message. The communities that are most successful currently at attracting new members to their non-paying, often thankless board slots are those that actually connect with their audience. They use mass texts, group emails, sophisticated websites and even Social Media sites to let their members know what they are doing and to encourage them to get involved. Community social events are another effective way to communicate. I was recruited to serve on my board at a community social event. Those spring and fall luncheons and seasonal events can go a long way towards creating a sense of excitement about serving on the board.

What is another idea to get someone interested in taking over your seat on the board? How about looking at your current board from a bystander's perspective to see how much you'd be inclined to join your own group? Are your meetings pleasant? Are they held at times that are convenient and managed in an effective, respectful manner? Do your board members seem to be enjoying themselves at these meetings, happy to tell those gathered about what they are doing and why? Does the board create initiatives and opportunitiees that enhance the quality of life and make an outsider eager to join in and contribute to those ideas?

Do your residents feel a sense of camraderie when they look at your board interact or the exact opposite? If your board is miserable, what is the likelihood that a talented person would want to join in the misery?

A director with true leadership skills is not often on the receiving end of a recall petition but it does occasionally happen. A leader will gracefully depart when the recall is in order rather than fighting the inevitable. This may not be your preferred method of passing the baton but if the community has spoken, you should listen.

Lastly, it is important to remember that when seeking new talent for your board, you are asking people to serve and give. Most people are more likely to give when they have already received. If your board has put in time and effort for years and the positive community results are evident, your job in convincing others to serve will be much easier.

Tuesday, July 24, 2012

Part II: Cultivating New Community Association Leaders

In the first part of this series, I left you with a question of whether or not your current association VP would
step into the shoes of a departing President. The answer was a resounding "NO".  Other than general malaise, what would be the reasons for such reluctance? Is it because the office is seen as a thankless position; the office requires too much time or would subject the holder to criticism; or the VP does not feel he or she has the support of the board?

In Florida and many other states, association directors cannot typically be compensated for their service on the board which means a community must make the "job" enticing for other reasons.

Why would someone want to serve in a leadership role in a community association?

Well, experience has taught that there are positive reasons and negative reasons that explain why some association members undertake these roles. Let's start with the positives:

  • Wants to make a difference
  • Wants to safeguard community values
  • Has skills that could be helpful to the board
  • Has a personal issue that he or she wants to be resolved which would also be in the best interests of the community.
Now, unfortunately, come the negative reasons:

  • Has a personal issue that he or she wants to be resolved which might not be in the community's best interests
  • Power play
  • Desire to send work to his or her own company or friends' companies
  • Potential fraudster
At my seminar, I related my own personal reason for getting more involved with my HOA. Several years ago, I received a notice along with all of my neighbors that Sprint would be putting up a cell tower in the guise of a massive flagpole directly across the street from our community entrance. Naturally, the base of this pseudo-flagpole would be surrounded by a 7 1/2 foot brick enclosure topped off with barbed wire; not exactly the type of structure you want to see first thing in the morning upon leaving your community or last thing at night before entering.

I began to meet neighbors I had never known before, take part in meetings, actively engage in the various communication channels in our community (website, mass email and newsletter) and became generally more enthused about where I lived. A little less than 8 months after we started, we were successful in convincing Sprint to move their cell tower to a more appropriate commerical location along the highway rather than in the middle of our quiet residential neighborhood. Years later members of our community still talk about our "near miss" and the successful battle we waged. Having a compelling cause can be one of the easiest ways to bring a community together as well as to cultivate new leaders for your association.

My third and final blog in this series will focus on the kinds of examples, good and bad, being set by current board members, as well as what behaviors create leadership paths for both current board and committee members as well as for association residents.

Monday, July 23, 2012

Cultivating new community association leaders: Part I

I was asked to give a presentation this last weekend at the City of Orlando's Community Conference. The topic I was asked to speak about was Cultivating New Organization Leaders.

My initial reaction upon hearing the topic was "come again"; after all, when we think of leaders, community associations are not the first entities that come to mind. Most of us can name at least a handful of military leaders throughout history, a few business leaders and some political leaders. However, do any names of community association leaders come readily to mind? When you think about it though, the same kind of leadership skills that apply to the military, business and politics would serve our communities well.

I asked the people in attendance how many had ever attended a leadership seminar at their jobs; quite a few hands went up. I asked them how many had read a book on leadership in their business careers and many of the same hands remain raised. Several popular titles were shouted out: Winning by Jack Welch; Leadership is an Art by Max DePree; On Becoming a Leader by Warren Bennis and The 7 Habits of Highly Effective People by Stephen Covey. I then asked the audience how many of them had applied or even discussed any of the lessons learned in their training and these books to their roles as community association directors and committee members. Not surprisingly, every hand was lowered.

How many folks have served on a board where the members disliked and mistrusted each other? How many have served on an association board where the members liked and respected each other and worked well together? It's not hard to figure out that the former situation creates dysfunction in a community. How many people would like to turn the reins over to a new generation of leaders in their community but no one is willing to take up the baton? How many communities currently don't have any leader on their board or the wrong type of leader(s)?

My next several blogs will contain strategies for your community to identify and train potential new leaders.

Organize formal training.  The board should search out free educational classes and materials for board members, committee members and potential candidates for the board.  Going together to one of these classes and discussing what was heard and learned together can be tremendously helpful in deciding how to put that new knowledge to good use in a community. Even buying one of the books mentioned above or the hundreds of other books on negotiation and leadership skills out there  is a good start; approach the matter like a book club and discuss the chapters at successive meetings. By all means let your community members know about the classes you're attending and materials you are reading as a board. It might just help change a resident's mind about serving on the board in the future when they see the camraderie displayed.

Do some informal training.  This is another option when it comes to getting some new blood on the board. You can develop future leaders by handing out challenging assignments to current board and committee members. Those members who show focus, talent, ethics and skills should be encouraged to seek roles as future leaders. Even just taking note of who consistently shows up for meetings and community events can provide a clue as to future leadership candidates.

Focus on an internal succession plan for your community.  Do current board members who are directors but not officers wish to become officers? Do current officers wish to hold different offices? Do current committee members wish to run for the board? If your board does not know who wants what in terms of serving the community, it should.

Next time your board meets, ask yourselves a question.  If the president of the association moved would the current VP wish to fill the president's slot? I asked this question at my Community Conference and the answer was a resounding "NO". That in itself reveals what a hurdle most communities have when trying to plan for future leaders to carry on projects and to undertake the tasks necessary to keep the community functioning.

My upcoming blogs will feature on what can be done to overcome this and other hurdles to cultivating new community association leaders.

Monday, July 16, 2012

Avoiding the appearance of self interest as an association director

A reader of my blog recently wrote to discuss a situation in her community where the interests of the membership came second to the interests of some board members. The reader wrote that the community had been polled and the vast majority of residents supported an expenditure of $1,500 per year so the county bus would stop outside their community. The board declined to pursue that expenditure but instead opted to spend $3,200 to install a roof over a softball field dug-out in the community; the fact that most of the board members played on that softball team did not go without comment.

The reader wrote that she had no issue with the roof but a bus to make shopping easier for the residents had been her preference along with many of her neighbors. Ultimately, the board is elected by the members to make decisions on their behalf but how often do the directors have personal interests that might be given priority attention? In the scenario provided above, being a softball player alone does not mean that a director could not vote on the respective expenditures and still decide that the roof was in the best interests of the community. However, throw in the fact that the community was polled, voiced its preference and that preference was overlooked and you now have murkier waters.

Believe it or not, directors are human and they have many of the same issues arise in their lives that non-board members experience. Nevertheless, serving on the board demands that directors recognize when their personal issues or preferences might make it difficult or even impossible to vote impartially on a matter. If the board is voting on whether or not to pursue a resident for using someone else's assigned parking space and it just happens to be the President's spot that has been seized, that is fairly pertinent information that the rest of the board deserves to know in advance of the vote. If the board is voting on whether or not to suspend the use rights of delinquent owners and the Treasurer's best friend happens to be delinquent, that relationship should not create a hurdle to doing what is right for the community.

Some issues clearly constitute a conflict of interest which would demand a director's disclosure and abstention from voting. Other issues, however, merely flirt with self interest. Those instances still demand that a director understand how he or she is voting on a particular matter and why. If there is even a whiff of self interest, the membership will sniff it out in many cases so the wise director is the one who takes steps to clarify his or her position in the face of such circumstances.

Lastly, when you poll your community members and they voice an opinion on a proposed course of action, boards who disregard that input do so at their own peril. This is not to suggest that the membership must be polled on every course of action, particularly on routine maintenance which is one of a board's main functions, but if you ask for input on discretionary spending it's probably best to heed the message your members delivered.