Monday, May 28, 2012

Is an injunction the right remedy to stop abusive HOA resident’s behavior?

Behavioral issues are some of the most difficult issues to confront and resolve in a shared ownership community. Sometimes it is virtually impossible to determine where the source of the problem lies. At other times, however, a problem can be crystal clear and the troublemaker undeniable.
A resident in the Lake Dexter Woods Homeowners Association, Inc. was found to be using vulgar, vile and abusive language in the community, threatening other residents with physical harm and generally terrorizing the community. The association went to court to pursue injunctive relief which was granted by the trial court, prohibiting the resident’s behavior. That decision was appealed by the resident in the case of Connors v. Lake Dexter Woods Homeowners Association, Inc., 50 So. 3d 1212 (Fla. 2d DCA 2010).
The Appellate Court upheld the lower court’s decision but expressed some doubt that an injunction could effectively cure the problem. Many associations who face similar problems turn to the civil system to rein in such behavior, hoping to obtain a civil injunction based on a violation of the association’s nuisance provision. However, civil courts are often reluctant to issue such injunctions and even when issued, it can be extremely difficult and costly for an association to enforce the injuction.
Sadly, even when the threatening behavior can be considered criminal in nature, the police are reluctant to act in many cases when the conduct occurs within the confines of a mandatory community association. Here is the catch-22: if an association is aware that one resident is threatening to harm other residents and does nothing to stop the behavior, the association will most likely be sued should those threats become a reality and damage to person or property ensue.
Associations facing these kinds of behavioral problems should reach out to both their local police department and their association attorney to pursue both civil and criminal remedies where available.

Monday, May 21, 2012

What does the departure of "snow bird" owners mean for your condo, cooperative or HOA?

As we head into June, many Florida communities may see far fewer faces around the pool, lobby and other common areas. Why? Because many owners with homes in other locations tend to leave us during our balmier months in Florida for cooler climates elsewhere.

The term "snow birds" typically refers to retirees and other folks whose primary residences are outside our state but who spend a good portion of their time down here in the late Fall and Winter. The general migration tends to be a return to Florida (and states like Nevada, Arizona and others in the Sun Belt) in late November and a departure in late May.

Over the years, there have been grumblings from both the snow bird camp and the ones left behind. At one time, quite a few condominiums required year-round residency to serve on the board. The Division of Condominiums frowned on those restrictions and the Statute now clearly lists which conditions render someone ineligible to serve on a condominium, cooperative or HOA Board and primary residency elsewhere is not among those conditions.

What are some of the issues that have been attributed, fairly or unfairly, to snow bird owners?
  • When the board is made up of directors who leave the state for months at a time, meetings and other operational issues can come to a standstill;
  • When owners leave their units untended for months at a time, issues can spring up which can adversely impact neighboring units. The most common example of this is a hot water heater that springs a slow leak and goes unnoticed for some time, causing significant damage to both the unattended unit and neighboring units; and
  • When hurricanes and other storms approach, there can be difficulty reaching absentee owners to make arrangements for storm preparations.
What are some of the issues that concern owners who love their Florida winter homes but live elsewhere for a good portion of the year?
  • Some snow bird owners contend that they are not given a fair shot at serving on their boards given a general bias against them;
  • Many snow bird owners deplore their property tax situation; 
  • Often, there is the complaint that voting materials and other important association documentation never makes its way up north to the owner's other address.
For those of you who are snow bird owners or have a large concentration of snow bird owners in your community, what are the issues you've enountered and how have you successfully resolved them?

Sunday, May 13, 2012

Does your condominium, cooperative or HOA board mirror Florida’s demographics?

Ask most people what they think about when you say the words “condominium board of directors” and chances are they have a vision in their mind that might be much different than our current community demographics particularly when you are talking about various Florida counties.

The 2011 U.S. Census estimated that Florida has 19.05 million residents making ours the fourth-largest state. Florida’s median age is 40.7, making it one of seven states with a median age over 40. However, both Maine and Vermont have higher median ages. Florida’s population does have the highest percentage of residents (17.3%) over age 65 in the country although six other states have a slightly higher percentge of the very old (defined as 85 and up) than Florida.
Florida ranks second in the nation for the lowest percentage of residents born in the state with only 35.2% natives. Nevada is #1 in the nation for the number of natives living in its borders at just 24.3%! Of those folks moving to the Sunshine State, the largest number came from New York (55,000 in 2010) followed by Georgia, Texas, New Jersey and California.
While Florida has its share of elderly residents, it also has plenty of young people with 10.5 million of its residents under age 45. Even more significant, more than 21% of the state’s population is under age 18. Sumter County (with a population of just under 100,000 and home to the giant Villages retirement community) is the Florida county with the highest median age at 62.7. The following Florida counties all have median ages over 50: Sarasota, Charlotte, and Citrus.
Duval County (Jacksonville) is the youngest in our state with a median age of 34. Not surprisingly, Gainesville and Tallahassee are our youngest ciites with their vibrant student populations.
We are a diverse group. In seven Florida counties (Miami-Dade, Broward, Orange, Osceola, Hendry, Hardee and Gadsen), non-Hispanic whites make up less than half of the population. We are also clustered around our coastline as 80% of Florida’s population lives within 10 miles of the coast.
Hispanics account for 22.5% of Florida’s population (making ours the 6th largest percentage of Hispanics of all states). African-Americans account for 16% of Florida’s population and we are ranked number one in the U.S. for the largest number of French Creole speakers. The number of undocumented immigrants who call Florida home was 760,000 in 2010 which was down from nearly 1 million four years earlier according to federal estimates.
Our state’s population has also shifted over time. In 1990, 2/3 of Floridians lived north of Ocala. By 2012, nearly half of Floridians lived south of Lake Okeechobee.
So, does your board look more or less like the State’s and your county’s demographics? Who runs for and is elected to the board in your community? Have younger people, native Floridians and/or non-native English speakers been less or more represented on your board?
The census statistics reviewed don’t even discuss the gender divide in our population and the makeup of our community boards. That could certainly be a topic for a future blog!

Monday, May 7, 2012

Taking your community's pulse: what Condominium, Cooperative and HOA boards need to consider

Think back to the night of the annual meeting and election when you may first have been elected to the board. If your victory came after a hard-fought battle against an incumbent or after years of suffering through previous boards' bad decisions, it was probably a moment you cherished. Still, when you heard your name called that night, did you and your fellow board members truly know what goals the membership was hoping you would accomplish on its behalf during your term on the board?

Most boards don't receive instructional manuals at their first organizational meeting. Some boards do run on a platform of change and it is usually the changes they personally want to see implemented in the community should they win. How many new and existing directors regularly poll their members to take the community's pulse on what is most important to THE RESIDENTS?

Thanks to the plethora of educational classes and materials made available (often for free) to volunteer board members these days, most directors know that there are certain areas where the community's members must be consulted and their approval given prior to the board taking action.

What are these areas? Among other items:

-Waiving reserves;
-Using funds held in reserve for non-reserve purposes;
-Materially altering the common elements;
-Amending the governing documents (although rare, some governing documents do allow the board alone to amend them); and,
-Reducing the financial reporting requirements.

There are other areas, where boards are within their scope of authority to act without ever informing the members or seeking their input. These include:

-Signing contracts;
-Hiring employees;
-Firing employees;
-Fining residents;
-Filing lawsuits (although rare, some governing documents do require membership approval prior to commencing a suit); and,
-Canceling contracts.

Just how much input should a board seek from its members on the list above?

Should the owners be consulted prior to suing that painter who walked off the job? What about prior to firing the long-term landscaper? How about the board deciding to not renw the bulk cable contract but advising owners that they must enter into their own contracts with the cable provider of their choice? All of these examples are decisions that boards can and do make on their own. Some boards, however, take an extra step and bring the members into the dialogue before making the final decision.

This can be accomplished by straw polls on a variety of contemplated actions and/or by special membership/board meetings prior to big decisions. In some communities this works beautifully and has created a level of transparency and inclusion that creates greater membership satisfaction. In other communities, just the opposite has occurred. If you ask members what they think and then ignore their opinions, you might just have opened Pandora's Box.

What has your experience in your community been? Too little membership inclusion, too much membership inclusion or just the right amount?