Sunday, January 25, 2015

Should you stay or should you go? Directors- think twice before tendering that resignation!.

How many times have you thought about resigning from your association's board of directors because you felt that your efforts and time were not appreciated at best and were resented at worst? I often tell my association clients that I understand how they feel because I do. I served on my HOA Board for one two-year term. While the overall experience was positive and certainly beneficial considering what I do for a living, I remember one uncomfortable incident that occurred during my time on the Board.

One director (we'll call him Jim for the purpose of this blog) decided that having a certain plant material installed in the community was of utmost importance to him. Jim was ordinarily a very nice guy. However, when I mentioned to him that nothing in our association's governing documents actually authorized the planting project he was steadfastly pursuing, he became a little perturbed. Jim became so perturbed in fact that he asked me to resign from the Board to "maintain our friendship". I was taken aback by the request but gave it some thought and ultimately decided that resigning to avoid a conflict was not the right thing to do. While I often counsel directors that making tough decisions is really a job requirement, I also tell them to consider quality of life issues if the stress of being on the board is too much.

Still, I have seen some directors resign in a huff only later to regret that decision. In Florida, Section 617.0807 of the General Not For Profit Corporate Act provides that a director may resign at any time by delivering a written notice to the board of directors. Such resignation is effective when the notice is delivered unless the notice specifies a later effective date.

The statute further provides that resignations must be in writing and most reasonable people agree that email constitutes written communication. Among the other pernicious aspects of email, resigning in a huff via email can pose a huge problem for association directors who later regret that decision. The statute does not require anyone to actually "accept" the tendered resignation so if a beleaguered director writes an email to his or her fellow directors tendering a resignation in the hopes that someone will talk them out of it, it is already too late as they are off the Board. Of course, he or she can appeal to the board to be reappointed to the seat he or she just vacated by virtue of resigning but there is no guarantee that will happen.

If you are an association director who is considering resigning from your board as a result of conflict with fellow directors, time constraints or perceived hostility from your members, take your time to deliberate on the matter before hitting send on that resignation email.

Tuesday, January 20, 2015

Attorney Donna DiMaggio Berger will be a guest on the “Condo & HOA Hour”, Wednesday, Jan. 21, 2015

Donna DiMaggio BergerAttorney Donna DiMaggio Berger will be a guest on the “Condo & HOA Hour” on radio station KKNW 1150 AM Wednesday, January 21, 2015. Ms. Berger will provide commentary on national trends in the community association industry and discuss how technology is affecting HOAs and condos, and how volunteer board members are getting the education necessary to effectively lead their communities. The show mixes education, entertainment, guests, features, and call-in conversations.

Ms. Berger is a well-known condominium attorney and shareholder in Becker & Poliakoff’s Community Association Law Practice. She is active on social media and authors the popular “Community Association Law” blog on timely topics and issues of interest for common interest ownership communities.

She has created and manages the popular Condo and HOA Law & Living Group on LinkedIn and companion Condo and HOA Law & Living Group at Facebook, two of the most active social networking groups for community association residents and professionals. She also shares news and views on community association law and living on Twitter at @CondoandHOALaw.

Sunday, January 11, 2015

Trust but Verify-does your Board do its "Due Diligence" when selecting Professional Advisers and Vendors?

The other day I was flipping through an industry magazine and came across an ad touting a law firm that highlighted the firm's ties to a particular state and a particular practice area. It conveyed a strong message that surely will resonate with many volunteer boards looking for that type of firm for that particular type of representation. The only problem is that the Firm mentioned in the ad did not list a physical office in the state they were targeting nor were the attorneys shown in the ad's pictures even admitted to practice in the State!

This kind of experience reminds us that boards do need to undertake a certain level of due diligence when selecting professional advisers and other vendors to represent and service their communities.  If your board is considering a particular candidate, take a look at what that candidate says about his or her company and then confirm. The very old adage Trust but Verify is a good place to start.

Here are some areas to consider:
  • If you are vetting lawyers and law firms, verify that the size of their firm is confirmed by the number of attorneys reflected on their website. Even a state's Bar website may contain inaccurate information in this regard. The best way to determine the size of the firm you are considering is to visit their website and count the attorney names you see!
  • If a professional company or law firm claims to be experts in specialized areas, that reality should be borne out in their published articles and credentials. If you cannot find those anywhere, there may be a problem.
  • Credentials can be easily confirmed. If someone claims to be a member of a particular society, Bar Committee or other industry group or to be Board-certified, most of those membership lists and credentials are easily found these days via the Internet.
  • If a vendor claims to have represented neighboring communities, ask for contact information for those communities and follow up with them for referrals.
  • If a professional adviser touts a blog (yes, like this one!) ask if he or she writes it himself or herself or if it is ghostwritten by a PR company. This last point was a bit of a shock to me when I discovered that some of the blogs I read are not written by the published authors but are, in fact, ghostwritten by a company's PR arm. 
You may lament having to undertake this level of scrutiny when it comes to reviewing professionals who should be conducting themselves professionally. More often than not, you will find that the honor system is firmly in place for most of the advisers with whom you would consider doing business and the information being touted is, in fact, accurate. However, for those instances where there is more sizzle than steak, you will want to avoid potential problems by verifying skills, credentials and publicized information.

Doing your due diligence requires common sense, resourcefulness and yes, the willingness to wait to make a decision until you have done your homework.

Monday, January 5, 2015

Governing Documents Determine How Parking Spaces Are Defined

Question: The association in my condominium is trying to reassign all the parking spaces, which were originally assigned by the developer in 1969. I have a two bedroom unit and ever since I moved 15 years ago, I've had two parking spaces, just like almost every other two bedroom units. Recently, a member of the board changed how parking spaces are assigned. The new plan allows two bedroom units only one parking space. The board of directors say that they can do this by vote. Is this legal? What is the proper way to do it? Thank you, Enrique D.

Answer: Parking spaces are ordinarily subject to reassignment by the Board of Directors when they are common elements. Parking spaces which are appurtenances to the units are not typically subject to reassignment. The answer to your question lies in a review of your governing documents to see how these parking spaces are defined.