Last week we discussed how heat and water damage asphalt. This week let’s discuss how to maintain the asphalt and concrete surfaces.
In the early 1800’s, roads were mostly made of broken stones. To reduce dust and maintenance, builders used hot tar to bond the stones together producing “tarmacadam” pavements. Today, this method is still used as runways for airplanes at airports across the world. In 1870, a Belgian chemist, Edmund DeSmedt, laid the first asphalt pavement in Newark, NJ. His second attempt was 54,000 square yards of sheet asphalt in Washington, DC from Trinidad Lake to Pennsylvania Avenue. (It’s amazing what you can find on Google and Wikipedia!)
The asphalt of today is very different from what was used back then, but there are still some maintenance you should do to extend the life of your asphalt roads and driveways.
Crack Sealing – This is the most important part of maintain your asphalt and concrete. Alligatoring is a condition easily recognized by a series of cracks grouped together in one area. This type of cracking tells of a subgrade problem. The closer these cracks are together, the shallower the failure. Further apart indicates a deeper failure. When this happens and water gets into the crack and further erodes the asphalt, your only solution is to remove and replace that area. Continued water intrusion will only make the asphalt deteriorate and then it becomes unstable
Seal Coating – Sealing the roads/driveways can greatly slow down the deterioration process caused by heat, water and normal use. Most roads should be sealed every 3 to 5 years.
Oil spots – Even roads who only get usage from your community can still have oil spots from vehicles that are not properly maintained (think garbage trucks!). It oil is not cleaned up, over a very long period of time, the asphalt may become soft in those areas. There are ways to clean up oil spots, but unless you have the personnel, on your staff that can take care of those big areas, these are often overlooked. It is good to note, however, that if you, your staff or residents notice these types of oil stains after the garbage trucks have been in your community, call the garbage company immediately and make them come out and review the area and clean it. Clean oil spots using a commercial de-greaser, a broom and water. Just be sure to completely rinse the commercial de-greaser entirely.
Fuel Spills – Regular unleaded gasoline won’t damage the asphalt immediately but you should try to clean it up as soon as you can. Diesel fuel, on the other hand, is a solvent for asphalt. Contractors actually use diesel fuel to clean their equipment. Diesel fuel will completely dissolve the binders in asphalt and eventually it will turn into a hole.
We recently held an “Updating Governing Documents” educational webinar with Emily Gannon from Kaye Bender Rembaum to discuss why updating the governing documents of your association is critically important.
The intense Florida heat poses serious safety hazards and if not maintained properly, damages can progress to large cracks and potholes, neither of which you want in your parking lot, on your roads, or parking decks.
All hard surfaces, including asphalt, will absorb heat. You can feel it when you walk outside, especially in the summertime. This results in UHI (Urban Heat Island). This is an effect, especially in urban environments, where there is less vegetation and more concrete or asphalt, in which you will experience higher temperatures than those areas that have lots of vegetation. When the temperature is 75 degrees, asphalt can heat up to 125 degrees. To put it in perspective, you can fry an egg on asphalt when the temperature reaches 131 degrees.
When asphalt is exposed to hot temperatures, it begins to expand and if it expands too much, it will start to crack. The crack weakens the pavement and the heat causes the pavement to buckle and warp. We’ve all run over these “bumps” in parking lots and roads. This is because the road is made in layers. The crack, over time, will become bigger and then you have a whole new problem……..WATER!
Besides the Florida heat, we all know we have an abundance of rain. Water will seep into those cracks, made by the heat, and erode the sub-surface layers which results in an air gap that forms within the pavement. If the pavement above these sub-surface gaps experiences any pressure, like the weight of vehicles passing over it, the top layer of the asphalt will sag, collapse and then crumble, which we like to call POTHOLES.
Even if the rain doesn’t get to your asphalt, if your roads, parking lot or other asphalt areas at the bottom of steep terrain, running water, or standing water, can wash away asphalt little by little over time, leaving behind only bar rock and aggregate (think crumbling pavement). It is recommended that you seal your asphalt every few years in order to protect the surface layer. This will help to keep water from penetrating the asphalt and add an extra layer of protection against extreme temperatures. If you are quick to fix small cracks, the less of a chance that water will penetrate the asphalt and that your small problem won’t become a BIG problem. Make sure you have adequate drainage in your parking lots and on your roadways.
Many community associations throughout Florida struggle to deal with the increase in overnight and short-term rentals caused by the proliferation of online websites such as VRBO and Airbnb. As such, many communities fear being turned into “rental communities,” especially with so many large corporations buying homes in the South Florida area for the express purpose of renting them. These transient rentals can present nuisance and safety issues and can easily change the composition of your community. The good news, however, is that there are steps your association can take to help protect the community from becoming the next transient rental community by having the necessary language in the declaration of restrictions, as further discussed below.
There are two types of restrictions which work together to help achieve this goal. First, corporate (or business entity) ownership must be fully addressed. Second, specific criteria for approval of purchasers, tenants, and occupants residing in the community for longer than 30 days (or such other time period) must be adopted. Finally, a brief discussion regarding the applicability of the statutory provisions set out in Chapter 718 of the Florida Statutes, more commonly referred to as the Condominium Act, and Chapter 720 of the Florida Statutes, more commonly referred to as the Homeowners Association Act, is in order.
To avoid ownership for purely investment purposes, an amendment to the declaration that prohibits ownership by a corporation, limited liability company, partnership, trust, or other entity or company should be considered. However, certain carve-outs are recommended to ensure that the owners can use these types of entities for their estate planning purposes, to ensure that the rights of mortgagees are not adversely affected, and to ensure the association still has the authority to purchase units as a result of foreclosure or in other appropriate circumstances. In addition to restrictions on ownership, the association can consider adopting an amendment restricting the number of units that can be owned by a person or entity.
The association must ensure that its authority to approve transfers of title to lots and units is not an “unreasonable restraint on alienation.” In other words, the association must have the express authority to deny transfers of title, and the restrictions on such sales must be reasonable.
In Aquarian Foundation v. Sholom House, 448 So.2d 1166 (Fla. 3d DCA 1984), Florida’s Third District Court of Appeal considered the validity of a condominium association’s transfer restrictions. In its analysis, the court noted that “restrictions on a unit owner’s right to transfer his property are recognized as a valid means of insuring [sic] the association’s ability to control the composition of the condominium as a whole.” The court explained that while an association can adopt restrictions on transfers, that right must be balanced with the individual owner’s right to transfer his property. In Aquarian Foundation, the association had the right to deny a sale “arbitrarily, capriciously, and unreasonably” with no obligation to provide an alternate purchaser in the event of such denial. The court held that the association’s authority to deny for any reason whatsoever without the obligation to provide an alternate purchaser was an unreasonable restraint on alienation. However, the court explained that while a condominium association has “considerable latitude in withholding its consent to a unit owner’s transfer, the resulting restraint on alienation must be reasonable.” Therefore, we can glean from this case that a provision authorizing the association to approve or disapprove transfers is acceptable where the restraint is reasonable.
In 1993 Florida’s Fourth District Court of Appeal considered another challenge to an association’s approval authority. In Camino Gardens Association, Inc., v. McKim, 312 So.2d 636 (Fla. 4th DCA 1993), the declaration prohibited the sale, lease, or occupancy of any lot in the subdivision to anyone other than a duly admitted member in good standing of the association. The court held that because the restriction prohibited transfer to anyone except existing owners, the restriction was an unreasonable restraint on alienation and was invalid.
In Coquina Club v. Mantz, 342 So.2d 112 (Fla. 2d DCA 1977), Florida’s Second District Court of Appeal considered an age restriction contained in the declaration (which was lawful at the time). The applicant did not meet the age requirement and was therefore “facially disqualified.” The court held that, in light of the facial disqualification, the association did not have an obligation to provide the otherwise required substitute purchaser.
In light of the foregoing case law, any provision which grants the association limitless power of denial is likely invalid. If the association has the right to deny a purchaser, but the declaration is void of any standards by which such decisions should be made, the restriction can still be easily found to be invalid. However, if the declaration requires the association provide a substitute purchaser or allows for denial based on “good cause,” the provision is likely valid and enforceable. If an association has the right to deny “for good cause,” then to withstand judicial scrutiny, the governing documents, preferably the declaration, should provide standards as to what “for good cause” means.
As discussed above, the first step is to ensure that the declaration provides authority for the screening and approval process. The second step is to ensure there is meaningful written criteria by which to evaluate prospective purchasers, tenants, and even occupants residing for longer than 30 days (or other time period). If the declaration contains general language for purchaser and tenant approval but does not provide the standards and procedures necessary to make such a decision, then the association’s approval authority is vulnerable to judicial challenge and likely faces an uphill and expensive court battle. The association may be interested in adopting criteria, allowing rejection based on “good cause,” such as the following:
A record of financial irresponsibility
A guilty plea or conviction of a crime of moral turpitude
A history of being a “bad tenant”
A false statement on the application
Failure to comply with the request of the board of directors for a personal interview
(Please note this abbreviated list was provided for example purposes only and should not be utilized by any association without consultation with the association’s lawyer as additional language is necessary.)
Providing specific written criteria on which the association can base its denial of a proposed sale, lease, or other transfer helps protect the association from claims that it is not acting reasonably in denying a transfer. However, before disapproving a proposed sale or lease, the association should be sure that the disapproval does not run afoul of the provisions of the Fair Housing Act at the federal, state, and county levels. The federal Fair Housing Act prohibits discrimination in the sale, rental, and financing of dwellings, and in other housing-related transactions, based on race, color, national origin, religion, sex, familial status, and disability. State law and, sometimes, local ordinances provide additional protected classes.
While the authority to approve lessees is an important step, adopting additional leasing restrictions addressing the frequency and type of leases permitted in the community should also be included in the declaration if these issues are a concern for the community. Associations that would like to minimize the number of short-term leases might consider amendments to the declaration limiting leasing as follows:
No lot or unit may be rented or leased for a 12-month period (o longer) following the closing date (or date of recorded deed) of a sale of that lot or unit.
Owners are restricted to one rental or lease per calendar year.
After approval by the association, only entire lots or units can be rented, provided occupancy is only by the lessee and those individuals listed as occupants in the lease agreement.
No rooms may be rented, and no transient tenants may be accommodated.
No owner may list the owner’s lot or unit on any website (e.g., and without limitation, Airbnb, VRBO), print or online publication advertising the owner’s lot or unit for short-term rental
No lot or unit may be subleased.
Statutory provisions must be considered as well regarding whether a new lease restriction amendment will apply to all owners or only those who vote in favor of the amendment or who acquire title to their unit or home after the effective date of the amendment (these issues will need to be reviewed with association counsel). For instance, we note the following:
As to condominium associations, effective on October 1, 2004, the Florida legislature first adopted §718.110(13), which has since been amended, and this section provides that “[a]n amendment prohibiting unit owners from renting their units or altering the duration of the rental term or specifying or limiting the number of times unit owners are entitled to rent their units during a specified period applies only to unit owners who consent to the amendment and unit owners who acquire title to their units after the effective date of that amendment.”
As to homeowners associations, effective on July 1, 2021, the Florida legislature adopted §720.306 (1)(h) which provides that, “[e]xcept as otherwise provided in this paragraph, any governing document, or amendment to a governing document, that is enacted after July 1, 2021, and that prohibits or regulates rental agreements applies only to a parcel owner who acquires title to the parcel after the effective date of the governing document or amendment, or to a parcel owner who consents, individually or through a representative, to the governing document or amendment. …Notwithstanding… an association may amend its governing documents to prohibit or regulate rental agreements for a term of less than 6 months and may prohibit the rental of a parcel for more than three times in a calendar year, and such amendments shall apply to all parcel owners.”
As you have likely discerned, the leasing restrictions of the Homeowners Association Act are broader than those set out in the Condominium Association Act. However, the real issue is whether these provisions apply to all associations that are already in existence or only to those that have adopted “Kaufman language” into their declaration and those declarations that are recorded after the effective date of the statute.
Kaufman language refers to having a provision in the declaration that it is subject to the relevant Chapter “as it is amended from time to time.” If the declaration contains such language, then there is no question that the statutory leasing provisions do apply. On the other hand, if there is no Kaufman language set out in the declaration, then what? There are those who take the position that these statutory leasing provisions are “procedural;” if so, then they would apply to an existing declaration. But, if the statutory leasing provisions are changing existing “substantive rights,” then, absent Kaufman language, the statutory provisions likely do not apply to the declaration at issue. By way of an oversimplified explanation, this is because the declaration is a contract, and the legislation in effect at the time a contract is executed is the law to which the contract is subjected.
Thus, we must ask the question, are the statutory leasing provisions disturbing existing substantive rights? Likely so, though it may take an appellate court decision to bring needed clarity. Clearly, this is an issue which must be discussed with the association’s legal counsel.
To ensure your association is properly protected against unwanted transient rental, you should consult with association’s legal counsel who can review the governing documents to ensure necessary language is included and make recommendations to better protect the association from the likes of VRBO, Airbnb, and other short-term rentals, and at the same time shore up the association’s approval powers over owners, tenants, and occupants.
by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.
Did you know that Florida law authorizes a party who owns or leases property, including condo associations, or their authorized representatives, to tow a vehicle off the premises if it’s parked there without permission (think decal, pass, etc.). However, there must be prominent notices on the premises indicating its tow away zones prior to any vehicle being towed away. This requirement doesn’t apply to single family residences. The law also applies to vessels, which Florida law defines as a “watercraft, barge, and airboat used or capable of being used as a means of transportation on water”. Businesses may also authorize the towing of a vehicle if it’s parked in a way that restricts the business’s normal operation or obstructs access to a private driveway. The person or company that tows a vehicle must notify the local police or sheriff’s department of the tow within 30 minutes of completion and identify the storage facility where the car was taken.
Violations (Ticketing) are usually done for the following reasons:
Residents have more cars than their assigned spaces
Resident cars parked in “guest spots”
Types of vehicles that are prohibited by the Declaration are parking anyway
Cars are parked in loading zones and fire lanes
Vehicles block driveways, ramps, elevators, or fire exits
Parking on streets may be prohibited by the Declaration or local government
Inoperative cars are stored on association property
Vehicles leak oil onto the parking areas
Vehicles exceed the posted speed limit
Vehicles park on lawns
Stop signs are not observed
REMEMBER, your local Code Enforcement and/or local police may help with ticketing for parking in fire lanes, within 15 feet of a fire hydrant, blocking crosswalks, parking in a handicap space with no decal or tag, parking on streets as prohibited by the local government and other. If parking is a big issue for your community, contact them to see what they can do to help.
We recently held an “Insurance Increases” educational webinar with Damian McFadden from USI Insurance to discuss recent increases in association insurance costs.
Do you have questions or need clarification regarding your Association’s Insurance? Insurance can be a complicated subject and entails a unique vendor relationship. Here are some commonly asked questions about Association insurance:
What insurance must an association carry?
Can they be Self Insured?
What is the role of the Insurance Agent?
How is Association Insurance “Shopped” or “Bid Out”?
How does the Association know they’re getting the best deal available to them?
What is the difference between an “Admitted” and “Non-Admitted” Carrier?
If you are looking for answers to any of the above questions, this short video will answer them for you:
If you would like to learn more about the increase of insurance rates and the general State of the Market, please Click Here to watch our Insurance Increases Webinar from October 5th.
Your lakes and ponds have many different functions and vary from community to community. For the most part, they collect sediment and flowing water during rainstorms, operate as fishing spots, and serve as beautiful ecosystems to enjoy year round. But when they are unmanaged, they can have physical and chemical imbalances that affect the lifespan of the waterbody and affect the surrounding ecosystem.
You should contact an experienced professional to discuss the options to fix and then protect these imbalances. Aeration is one thing that many associations turn to in order to fix years of problems. It may not be the first solution that comes to their mind, however if you have a lake covered in algae, the resulting circulation and oxygenation from aeration can make a huge difference in the long term sustainability and effectiveness of a good management plan.
Well-oxygenated water can help prevent the occurrence of undesirable algae by increasing the activity of aerobic bacteria and facilitating the conversion of phosphorus to forms that do not sustain algae growth. It can also adjust pH and other related water quality to help improve the growth of fish, native organisms and healthy green phytoplankton. Improved oxygenation and water circulation can help reduce the accumulation of organic sediment at the bottom of the waterbody. Your lake or pond will be healthier and less likely to require algaecide treatments or costly dredging.
There are four (4) types of aeration systems which you can consider.
Floating Fountain Aerators
Surface Lake and Pond Aerators – these are especially good for shallow waterbodies
Submersed Diffused Aeration – these are good for deep waterbodies
Nanobubble Aeration Treatments
Again, make sure that you talk to a professional about what lake management options work well for your community.
There’s news once again reporting food and product supply shortages are on the horizon, if not already here, due to what can only be described as a logistics disaster. This morning’s news reported that there are thousands of shipping crates snarled in a logistical nightmare waiting to be off loaded with no relief in sight. One news source reported 250,000 crates are waiting to off load. While no one is yelling “fire in a crowded theater,” (yet) it likely makes sense to get ahead of your association’s inventory needs. That said, hoarding is never a good idea. But, keeping extra inventory on hand may make sense until the supply chains are working correctly again.
Sources for the following include CBS News, the Wall Street Journal and Axios:
“American families are going to face a two-pronged assault:
1. Empty shelves at toy and grocery stores 2. Inflated prices on the toys and groceries that are available.
At this very moment, there are 250,000 shipping containers stuck at sea off the east and west coasts, waiting to be unloaded and it could be months before they get to store shelves. But Biden is presiding over one of the biggest supply chain bottlenecks since WWII: [via CBS News]
Ships cant dock because ports are full
Ports are full because there aren’t enough truck drivers to take the shipping containers away
When truckers do arrive, the ports are poorly staffed and they can’t offload fast enough, resulting in truck drivers who used to pick up 20 loads/week, now only able to take six
The cost of shipping a container from China to the U.S. is now $20,000, four times higher than this time last year.
It’s already begun: Stores across the country are already restricting supplies. Try not to have flashbacks to March 2020, but Costo and Walmart have announced they are limiting sales of toilet paper in some stores. And around the country, there are shortages of goods on shelves in Target, Costco, Home Depot, and Sears.
Warning about your Christmas feast: Axios is reporting that food supplies will also be impacted: “Grocery stores could have limited quantities of a number of products heading into the holidays after some of the country’s biggest food manufacturers say they’re short on supply.”
The Boy Scout motto “Be Prepared” comes to mind!
by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.
Few professions have more demands placed upon them than that of the Florida licensed community association manager (CAM). Depending on whom you ask, the CAM is the organizer, rules enforcer, keeper of secrets (meaning confidential and statutorily protected information not limited to the medical record of owners and attorney-client privileged information), best friend, the “bad guy” (a frequent misconstruction), and the first person in the line of fire when things go wrong; in other words, the one who takes all the blame and gets little credit when things go right.
When things at the association go wrong, what comment is most likely heard? “It’s the manager’s fault!” But, is it? Unless the manager failed to carry out a lawful directive from the board, breached a management contract provision, or violated a Florida statute, then in all likelihood, the manager has no culpability. CAMs are licensed by the State of Florida pursuant to Part VIII of Chapter 468 of the Florida Statutes, and there are statutory standards by which CAMs must conduct themselves.
Pursuant to §468.4334, Florida Statutes, “[a] community association manager or a community association management firm is deemed to act as agent on behalf of a community association as principal within the scope of authority authorized by a written contract or under this chapter. A community association manager and a community association management firm shall discharge duties performed on behalf of the association as authorized by this chapter loyally, skillfully, and diligently; dealing honestly and fairly; in good faith; with care and full disclosure to the community association; accounting for all funds; and not charging unreasonable or excessive fees.”
As set forth herein, statutory standards provide guidance to CAMs as to how they should conduct themselves. They must discharge their duties with skill and care and in good faith. They must act with loyalty to their association employer and deal with the association both honestly and fairly. They must provide full disclosure, which can be interpreted as both keeping the board informed of current events and providing disclosures of any conflict of interests. They must be able to account for all funds, too, which means both assessment income and expenditures; in other words, they must mind the budget.
Best practices for CAMs include becoming extremely familiar with the governing documents of the association (including the declaration, articles of incorporation, bylaws, and rules and regulations) and the financials of the association, walking the physical property, engaging with their team and residents, as well as providing weekly status updates to the board regarding all ongoing association business. If you are a CAM and do these things, then you have an opportunity to shine and stand head and shoulders above your peers and competition. This weekly status report is an excellent communication tool yet seems to be a rarity. CAMs should also make themselves available to owners. However, when an owner becomes offensive or insulting, the CAM should politely and firmly request that the owner communicate respectfully and in a professional manner. A CAM should always be financially transparent and should be extremely familiar with the management contract to fully understand her obligations and authority; for example, the limitation to spend association funds. Finally, the CAM should strive to keep a written record of her activities.
The two most obvious and biggest ways to get in trouble include committing acts of gross misconduct or gross negligence in connection with the profession or contracting on behalf of an association with any entity in which the CAM has a financial interest that is not disclosed. Disciplinary actions against a CAM fall under the purview of the Florida Department of Business and Professional Regulation (DBPR). Section 455.227, Florida Statutes, governs grounds for discipline, penalties, and enforcement.
For example, the following activities constitute grounds for which disciplinary actions may be taken by the DBPR (this list is not all inclusive):
(i) making misleading, deceptive, or fraudulent representations in or related to the practice of the CAM’s profession; (ii) intentionally violating any rule adopted by the DBPR; (iii) being convicted or found guilty of, or entering a plea of guilty or nolo contendere (“I do not wish to contend”) to, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a CAM’s profession; (iv) having been found liable in a civil proceeding for knowingly filing a false report or complaint with the DBPR against another CAM; (v) attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the DBPR; (vi) failing to report to the DBPR any person who the CAM knows is in violation of the laws regulating CAMs or the rules of the DBPR; (vii) aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to law; (viii) failing to perform any statutory or legal obligation; (ix) making or filing a report which the licensee knows to be false; (x) making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession; and (xi) performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform.
The Florida Administrative Code, in Rule 61E14-2.001, also provides standards for professional conduct which are deemed automatically incorporated as duties of all CAMs into any written or oral agreement for community association management services. A CAM must adhere to the following standards:
comply with the requirements of the governing documents by which a community association is created or operated
only deposit or disburse funds received by the CAM or management firm on behalf of the association for the specific purpose or purposes designated by the board, community association management contract, or the governing documents of the association
perform all community association management services required by the CAM’s contract to professional standards and to the standards established by §468.4334(1), Florida Statutes
in the event of a potential conflict of interest, provide full disclosure to the association and obtain authorization or approval; and
respond to, or refer to the appropriate responsible party, a notice of violation or any similar notice from an agency seeking to impose a regulatory penalty upon the association within the timeframe specified in the notice.
In addition, during the performance of community association management services pursuant to a contract with a community association, a CAM cannot withhold possession of the association’s official records or original books, records, accounts, funds, or other property of the association when requested in writing by the association to deliver the foregoing to the association upon reasonable notice. However, the CAM may retain those records necessary to complete an ending financial statement or report for up to 20 days after termination of the management contract. Additionally, a CAM cannot (i) deny or delay access to association official records to an owner, or his or her authorized representative, who is entitled to inspect and copy the association’s official records within the timeframe and under the applicable statutes governing the association; (ii) create false records or alter the official records of an association or of the CAM except in such cases where an alteration is permitted by law (e.g., the correction of minutes per direction given at a meeting at which the minutes are submitted for approval); or (iii) fail to maintain the records for a CAM, management firm, or the official records of the association as required by the applicable statutes governing the association.
How do you know if your association requires a licensed community association manager? Pursuant to §468.431, Florida Statutes, if the association has 10 or more units or has a budget of $100,000 or more and the person is conducting one or more of the following activities in exchange for payment, the person must be a licensed CAM:
controlling or disbursing funds of a community association
preparing budgets or other financial documents for a community association
assisting in the noticing or conduct of community association meetings
determining the number of days required for statutory notices
determining amounts due to the association
collecting amounts due to the association before the filing of a civil action
calculating the votes required for a quorum or to approve a proposition or amendment
completing forms related to the management of a community association that have been created by statute or by a state agency
drafting meeting notices and agendas
calculating and preparing certificates of assessment and estoppel certificates
responding to requests for certificates of assessment and estoppel certificates
negotiating monetary or performance terms of a contract subject to approval by an association
drafting pre-arbitration demands
coordinating or performing maintenance for real or personal property and other related routine services involved in the operation of a community association, or
complying with the association’s governing documents and the requirements of law as necessary to perform such practices.
However, a person who performs clerical or ministerial functions under the direct supervision and control of a CAM or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described above is not required to be licensed.
So, whose fault is it when things go awry? A CAM’s role is far different than that of a rental complex manager who often has decision-making authority. The CAM does not have that same type of decision-making authority. The CAM must take direction from the board and perform pursuant to the obligations set out in the management agreement and Florida law. It is the board of directors of the community association that actually makes the decisions. So, while the uninformed might blame the CAM, you now know that the buck stops with the board of directors. If you have further questions regarding a CAM’s responsibility, then please discuss this with your association’s lawyer.
by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.
