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.