Florida Association News Blog

The emergency nature of the Coronavirus outbreak remains in a state of flux. New information, protocols and recommendations from the Center for Disease Control (CDC) are being provided. Dr. Anthony Fauci continues to reiterate on Sunday morning news shows “things will get worse before they get better.” In an effort to shock some sense into college students on Spring break, the United States Surgeon General Dr. Jerome Adams warned “I want America to understand this week, it’s going to get bad.” The disease is spreading, he said, because many people – especially young people – are not abiding by guidance to stay at home and practice social distancing. Dr. Adams was very clear this morning to the American people when he said “We’re not going to ventilator our way out of this problem. We’re not going to treat our way out of this problem. The way you stop the spread of an infectious disease like this is with mitigation measures and preventing people from getting it in the first place.”

So, what does this mean in practical terms for your community association? Can the Board suspend meetings altogether and hold unnoticed board meetings? Can the Board temporarily limit or prohibit guest access to single-family communities, multi-family dwelling units or condominium buildings? Should the number of passengers riding in an elevator at one time be limited? What about those homeowners who are now demanding that landscapers stop entering their property to maintain lawns? Should the Board shut down all common areas, including the pool area, which seems to be a popular place for everyone to go right now because they are home and there is no rain in the forecast this week?

At the risk of repeating the obvious, these are unprecedented times leading to unprecedented questions, and requiring unprecedented measures. First and foremost, the residents of your community are looking to the Board for leadership much as we are looking to Washington D.C. and Tallahassee for leadership. This means all actions your Board takes should be measured and tailored to respond to the crisis.

We do not believe this type of crisis warrants holding meetings without notice to your members until such time as quarantine restrictions prevent the posting of physical notices of meetings, if at all. Physical posting and electric notice of meetings should continue, and then electronic notice if physical posting is no longer possible. We believe that community association boards should discourage gatherings of their members in a room to conduct association business. We believe any decisions that can be delayed without resulting in an interruption in the business operation of your association should be delayed until such time as the matter becomes critical to the uninterrupted operation of your association. If you are a small community and can conduct meetings that will not exceed the 10 people or more limitation on social gatherings and keep sufficient distance between residents, then membership attendance at meetings can continue. For larger communities, you are already at the point of reevaluating your agendas and scheduled meetings over the next two months and must plan accordingly. We recommend all associations, regardless of size, implement the use of free conference line services, and other online meeting facilitation platforms to avoid in person membership participation at meetings. This may mean that members will not be able to speak at meetings. So, again, we recommend you limit agenda items to essential business to avoid an interruption in association operations.

For those communities that have not held their annual meetings, we believe it is appropriate to postpone those annual meetings for so long as Governor DeSantis maintains the State of Emergency. The Governor has to revisit whether to extend the State of Emergency by May 9, 2020. Hopefully, the Division of Florida Condominiums, Timeshares, and Mobile Homes will issue a guidance letter on whether communities that have suspended their election process will need to re-notice the entire election or whether the annual meeting date will simply need to be re-noticed without opening up the time frame for candidates to submit notices of intent to run if the deadline to submit notice had already passed as of the date your community’s annual meeting was temporarily suspended.

In terms of limiting guest access to your community, several factors should be considered, and the actions taken by your community should be tailored to meet the emergency. Condominium buildings, where the proximity of living is much closer together than single family home neighborhoods, should consider and balance the rights of the owners to have guests and invitees, utilize the common element lobbies, hallways and other areas for ingress and egress purposes against protecting the overall safety, sanitation, and health of the condominium building and its residents. For condominium associations where access to a unit is through a common lobby or entrance, it may be reasonable for the Board of Directors to limit the number of visitors an owner or tenant may have at any one time to a reasonable number. In buildings, the number of people in elevators at one time should be limited. Other high-risk areas should be identified and temporarily closed, such as fitness centers, restrooms, indoor and outdoor dining areas, card rooms, and possibly the entire Clubhouse.

The Board may also wish to consider closing the common area pool if residents are gathering in large enough numbers despite all of the federal, state and local warnings not to do so. In the alternative, you may wish to temporarily remove all pool furniture from the pool deck to limit the spread of COVID-19, which appears to survive on metal surfaces the longest. Likewise, the association may consider that use of the pool be restricted to owners and residents. This would reduce the number of people at the pool and limit exposure. If your vendors are still providing exterior grounds maintenance services, then if people are indoors it would seem the risk to them is minimal. Each community board has to decide these issues as best they can baring in mind the Board’s duty set forth in Section 617.0803, Florida Statutes, which provides:

(1) A director shall discharge his or her duties as a director, including his or her duties as a member of a committee:

(a) In good faith;

(b) With the care an ordinarily prudent person in a like position would exercise under similar circumstances; and

These are stressful times for everyone and questions of first-impression will continue to arise in the next several weeks or months. When in doubt, contact your association’s legal counsel to assist your board of directors navigate your community’s specific issues. Most importantly, show your residents that the Board is ready to meet this challenge.

by Steven R. Braten, Shareholder & Paula S. Marra, Senior Associate, Rosenbaum PLLC

Tags Association, Condo, coronavirus, coronavirus outbreak, HOA, HOAs and coronavirus, outbreak, Rosenbaum PLLC No Comments »

Beware…The bad guys are preying on your fears and sending all sorts of scams related to the Coronavirus (COVID-19).

Below are some examples of the types of scams you should be on the lookout for:

1. Emails that appear to be from organizations such as the CDC (Centers for Disease Control), or the WHO (World Health Organization). The scammers have crafted emails that appear to come from these sources, but they actually contain malicious phishing links or dangerous attachments.
2. Emails that ask for charity donations for studies, doctors, or victims that have been affected by the COVD-19 Coronavirus. Scammers often create fake charity emails after global phenomenons occur, like natural disasters, or health scares like the COVID-19.
3. Emails that claim to have a “new” or “updated” list of cases of Coronavirus in your area. These emails could contain dangerous links and information designed to scare you into clicking on the link.

Remain cautious! And, always remember the following to protect yourself from scams like this:

• Never click on links or download attachments from an email that you weren’t expecting.
• If you receive a suspicious email that appears to come from an official organization such as the WHO or CDC, report the email to the official organization through their website.
• If you want to make a charity donation, go to the charity website of your choice to submit your payment. Type the charity’s web address in your browser instead of clicking on any links in emails, or other messages.

By Evan Bradley, CFO, Campbell Property Management

Tags coronavirus email scams, coronavirus scams, Covid-19 No Comments »

The President of the United States has now declared a National Emergency to combat the coronavirus outbreak. On March 10, 2020, Governor DeSantis declared a state of emergency to likewise combat the coronavirus outbreak in Florida. A number of private and public organizations have suspended large gatherings to implement the social distancing recommendations of the Center for Disease Control (CDC). According to the CDC, “‘social distancing’ means remaining out of congregate settings, avoiding mass gatherings, and maintaining distance (approximately 6 feet or 2 meters).” In addition, local governments and school districts are announcing closures each day in an effort to contain the spread of the corona virus.

SO WHAT SHOULD YOUR ASSOCIATION DO?
The question boards are grappling with today, tomorrow and until the President and Governor lift their national and state emergency declarations, is what to do to minimize the spread of COVID-19 within their communities? Sections 718.1265 and 720.316, Florida Statues, provide guidance. These statutes provide for “emergency powers” following damage caused by an event for which a state of emergency is declared by the Governor. Until the coronavirus outbreak, legal practitioners, including myself, understood “damage caused by an event” to refer to a hurricane or other similar natural disaster. However, the Governor has broad powers to declare a state of emergency. Specifically, Section 252.36 which is cited in Sections 718.1265 and 720.316 states:

252.36 Emergency management powers of the Governor:

(2) A state of emergency shall be declared by executive order or proclamation of the Governor if she or he finds an emergency has occurred or that the occurrence or the threat thereof is imminent. The state of emergency shall continue until the Governor finds that the threat or danger has been dealt with to the extent that the emergency conditions no longer exist and she or he terminates the state of emergency by executive order or proclamation, but no state of emergency may continue for longer than 60 days unless renewed by the Governor.

In light of the current declared national and state of emergency, Boards of Directors of a condominium or homeowners association, consistent with their obligations to discharge their duties in good faith and with the care an ordinarily prudent person in a like position would exercise under similar circumstances, may take emergency action to prevent the spread of COVID-19 within their communities. Indeed, the overriding purpose of community associations is to protect the health, safety, and welfare of their communities at large, particularly in the face of a national health crisis such as COVID-19. Such emergency actions include, conducting board meetings to address emergency related issues, including temporarily closing community facilities without holding an open meeting. Such meetings can be conducted by teleconference or video conference to avoid personal gatherings. Members should be advised as soon as practical of all emergency related decisions taken by the Board through all means available, including “publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium [or homeowner association] property or any other means the board deems reasonable under the circumstances.” All emergency actions taken should be ratified at the earliest opportunity that a duly noticed board meeting open to the members can be safely conducted. No actions that are not necessary to the continued safe operation of an association should be taken until this emergency passes.

Associations are also empowered to cancel and reschedule meetings. The Board, or in the absence of the Board to conduct a meeting, the president, as the chief executive officer of the association, may cancel and reschedule such meetings. For example, many of our community associations are still in the process of holding their annual meeting and elections. The Association may temporarily cancel and reschedule such meetings for up to 60 days to avert large gatherings to elect directors. Such meetings can and should be rescheduled for the earliest possible date after emergency conditions no longer exist (i.e., when the Governor of Florida lifts the State of Emergency). The following is a table that may assist boards in determining what powers are available to them to take emergency actions during this crisis.

Action	Homeowners’ Association	Condominium Associations
Disaster Plan	A disaster plan may be implemented before or immediately following the event. This may include, among other things, shutting off elevators, electricity, water, sewer, security systems, or air conditions.	A disaster plan may be implemented before or immediately following the event. This may include, among other things, shutting off elevators, electricity, water, sewer, security systems, or air conditions.
Entry onto the Property	Based upon the advice of professionals the Board may determine any portion of the association property unavailable for entry or occupancy.	Based upon the advice of professionals the Board may determine any portion of the association property unavailable for entry or occupancy.
Board Meetings	Board meetings and membership meetings may be conducted if notice provided in as practicable manner as possible.	Board meetings and membership meetings may be conducted if notice provided in as practicable manner as possible.
Assistant Officers	Assistant officers whom are not directors may be named to accommodate the incapacity or unavailability of the officer. The same authority as is conferred upon the executive officer whom they are assistants to is conferred on the assistant during the state of emergency.	Assistant officers whom are not directors may be named to accommodate the incapacity or unavailability of the officer. The same authority as is conferred upon the executive officer whom they are assistants to is conferred on the assistant during the state of emergency.
Association Meetings	May be canceled or rescheduled.	May be canceled or rescheduled.
Principal Office	May be relocated or an alternative may be designated.	May be relocated or an alternative may be designated.

As these are stressful times, we strongly recommend you contact your association’s legal counsel to assist your board of directors navigate your community’s specific issues. Good luck and stay well. This too shall pass.

By Steven R. Braten, Shareholder and Paula S. Marra, Senior Associate, Rosenbaum PLLC

Tags Condo, coronavirus, Covid-19, HOA, outbreak, Rosenbaum, state of emergency No Comments »

Rembaum’s Association Roundup

All board members and managers should take a few moments and brush up on emergency powers approved by the legislature and codified into Florida Statutes in Chapters 718, 719 and 720 for use during a “state of emergency.” Hopefully, your association will not need to use them. But just in case, now is the time to familiarize yourself with this important legislation.

No doubt the emergency powers granted by the Florida legislature to a condominium, cooperative and homeowners’ association board of directors for use during a “state of emergency” were intended for hurricanes and the like. Nevertheless, should circumstances warrant, they can be utilized during this state of emergency caused by the Coronavirus. However, use of these powers should be reasonably related to the threat at hand. In other words, there should be good reason for their exercise such that there is a nexus between the emergency action taken and the situation at your association as related to the Coronavirus.

Due to the Coronavirus, a myriad of other issues present themselves for consideration, too. Should board meetings be held and if so, how? Should the board learn of an infected member living in the association, what next? Should the infected person be identified to other members? What type of notice should be provided? Should an entire condominium be quarantined due to one case of coronavirus or should only those members who were in contact with the infected member be in quarantine? These are issues of first impression and the list goes on…

During this time, if there is no reason to have a board meeting because there is no business to be voted on, then consider cancelling the meeting. If a board meeting is needed, consider doing so by conference call. Remember, all members still have the right to listen and, at the right time, speak. If this is not possible, be sure to draft into the minutes the reason why, because there is no emergency power that allows excluding the members attendance and participation at a board meeting.

Based on what we have all seen and read, the infected person will be quarantined along with all other persons the infected person identifies as having been in contact with them. Therefore, one way or the other word of the situation is likely to get out. Nevertheless, notice to the entire community should be considered, but identification of the infected person should be avoided.

Meetings with a large numbers of attendees should be avoided, but if meetings with a large number of participants become necessary, then consider spacing out the seats to avoid unnecessary close contact.

Plan ahead by stocking up on several weeks of supplies needed for the smooth operation of the association.

Consider temporary closing of the clubhouse and other areas of possible congregating. Obviously, Bingo and similar games should be avoided. Shows should be cancelled and re-scheduled, if possible, etc.

The Board should focus on the protection of its members though minimization of health and economic risks. Regardless of what steps are taken, given the circumstances, there are possible legal consequences. Therefore, bear in mind prior to taking any action, consultation with the association’s attorney is an absolute must as this column is intended to provide information for consideration and not specific legal advice.

Thank you to the numerous those who provided their comments to this writer on this difficult, unchartered situation.

________________________________

THE SPECIFIC LEGISLATION

Following is the legislation that provides the specific emergency powers for Florida’s community associations. First presented is emergency powers for condominium associations, followed by emergency powers for cooperative associations and emergency powers for homeowners’ associations.

EMERGENCY POWERS:CONDOMINIUM ASSOCIATIONS

718.1265 Association emergency powers.—

(1) To the extent allowed by law and unless specifically prohibited by the declaration of condominium, the articles, or the bylaws of an association, and consistent with the provisions of s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the locale in which the condominium is located, may, but is not required to, exercise the following powers:

(a) Conduct board meetings and membership meetings with notice given as is practicable. Such notice may be given in any practicable manner, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the condominium property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be communicated as provided in this paragraph.

(b) Cancel and reschedule any association meeting.

(c) Name as assistant officers persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.

(d) Relocate the association’s principal office or designate alternative principal offices.

(e) Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.

(g) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the condominium property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.

(h) Require the evacuation of the condominium property in the event of a mandatory evacuation order in the locale in which the condominium is located. Should any unit owner or other occupant of a condominium fail or refuse to evacuate the condominium property where the board has required evacuation, the association shall be immune from liability or injury to persons or property arising from such failure or refusal.

(i) Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the condominium property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.

(k) Contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.

(l) Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions as are contained in the declaration of condominium, articles, or bylaws of the association.

(2) The special powers authorized under subsection (1) shall be limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.History.—s. 15, ch. 2008-28.

———————————————

EMERGENCY POWERS:COOPERATIVE ASSOCIATIONS

719.128 Association emergency powers.—

(1) To the extent allowed by law, unless specifically prohibited by the cooperative documents, and consistent with s. 617.0830, the board of administration, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the cooperative, may exercise the following powers:

(a) Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible, including via publication, radio, United States mail, the Internet, public service announcements, conspicuous posting on the cooperative property, or any other means the board deems appropriate under the circumstances.

(b) Cancel and reschedule an association meeting.

(c) Designate assistant officers who are not directors. If the executive officer is incapacitated or unavailable, the assistant officer has the same authority during the state of emergency as the executive officer he or she assists.

(d) Relocate the association’s principal office or designate an alternative principal office.

(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal.

(f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared, which may include turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.

(g) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board of administration, determine any portion of the cooperative property unavailable for entry or occupancy by unit owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.

(h) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board of administration, determine whether the cooperative property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(i) Require the evacuation of the cooperative property in the event of a mandatory evacuation order in the area where the cooperative is located. If a unit owner or other occupant of a cooperative fails to evacuate the cooperative property for which the board has required evacuation, the association is immune from liability for injury to persons or property arising from such failure.

(j) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the cooperative property, regardless of whether the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.

(k) Contract, on behalf of a unit owner, for items or services for which the owner is otherwise individually responsible, but which are necessary to prevent further damage to the cooperative property. In such event, the unit owner on whose behalf the board has contracted is responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 719.108 to enforce collection of the charges. Such items or services may include the drying of the unit, the boarding of broken windows or doors, and the replacement of a damaged air conditioner or air handler to provide climate control in the unit or other portions of the property.

(l) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the cooperative documents, levy special assessments without a vote of the owners.

(m) Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions contained in the cooperative documents.

(2) The authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.History.—s. 16, ch. 2014-133.

_________________________________

EMERGENCY POWERS:HOMEOWNERS’ ASSOCIATIONS

720.316 Association emergency powers.—

(1) To the extent allowed by law, unless specifically prohibited by the declaration or other recorded governing documents, and consistent with s. 617.0830, the board of directors, in response to damage caused by an event for which a state of emergency is declared pursuant to s. 252.36 in the area encompassed by the association, may exercise the following powers:

(a) Conduct board or membership meetings after notice of the meetings and board decisions is provided in as practicable a manner as possible, including via publication, radio, United States mail, the Internet, public service announcements, conspicuous posting on the association property, or any other means the board deems appropriate under the circumstances.

(b) Cancel and reschedule an association meeting.

(d) Relocate the association’s principal office or designate an alternative principal office.

(e) Enter into agreements with counties and municipalities to assist counties and municipalities with debris removal. (f) Implement a disaster plan before or immediately following the event for which a state of emergency is declared, which may include, but is not limited to, turning on or shutting off elevators; electricity; water, sewer, or security systems; or air conditioners for association buildings.

(g) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the association property unavailable for entry or occupancy by owners or their family members, tenants, guests, agents, or invitees to protect their health, safety, or welfare.

(h) Based upon the advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the association property can be safely inhabited or occupied. However, such determination is not conclusive as to any determination of habitability pursuant to the declaration.

(i) Mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the association property.

(j) Notwithstanding a provision to the contrary, and regardless of whether such authority does not specifically appear in the declaration or other recorded governing documents, levy special assessments without a vote of the owners.

(k) Without owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association if operating funds are insufficient. This paragraph does not limit the general authority of the association to borrow money, subject to such restrictions contained in the declaration or other recorded governing documents.

(2) The authority granted under subsection (1) is limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the parcel owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.History.—s. 19, ch. 2014-133.

Jeffrey Rembaum’s, 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.

Tags Condominium, coronavirus, Covid-19, Emergency, Florida state of emergency, HOA, Rembaum Association Roundup, state of emergency No Comments »

The 7th annual Florida Community Association Journal’s Readers’ Choice Award winners have been announced!

The FLCAJ Readers’ Choice Awards give communities and board members an opportunity to select their favorite service providers. These prestigious awards recognize service providers that offer superior service and demonstrate a commitment to the success of their communities.

For the 7th year in a row, Campbell Property Management has won the Diamond Award, the highest level of recognition.

Over 8,500 votes were cast by FLCAJ readers for the 550 nominated companies, but only a few would be dubbed winners. Levels awarded for nominated winners are: Silver as fourth place, Gold as third place, Platinum as second place and the Diamond award as first place.

To see the other winners, click here.

by Ashley Dietz Gray, Marketing Director, Campbell Property Management

Tags condo management, FLCAJ Awards, Highest rated management company in south florida, hoa company, hoa management, south florida management company No Comments »

There are now three confirmed cases of the Covid-19 virus in Florida: one in Manatee County and two in Hillsborough County. By the time you read this, there may be even more. As a result, Governor DeSantis has declared a State of Emergency. There is an increased risk for health care workers, individuals with respiratory and other underlying health issues, as well as the elderly.

Already, proactive boards and their management professionals are thinking about how this virus might impact their residential communities and what can be done to blunt the impact. We’ve received the following inquiries from several of our CALL members:

Can we prohibit all guests from entering the community?
Can we prohibit owners from undertaking renovation projects so we can prevent contractors and other workers from entering the property?
Can we prevent residents we know have traveled to any high-risk areas (China, South Korea, Iran and Italy) from returning to their units?
Can we ask potential purchasers and potential renters if they have traveled to any high-risk areas?
Does the State of Emergency mean the board now has emergency statutory powers?
Should we stop holding meetings?

While it is admirable that some community association boards are already gearing up for the inevitable spread of Covid-19, a balance must be struck in order to avoid panic. Overly restrictive protocol that unnecessarily impacts your residents’ freedoms and quality of life are not likely to withstand a potential legal challenge and they also will create unnecessary strain in your community. It is important to remember that not every private residential community will be impacted in the same way. In multifamily buildings where residents encounter each other frequently in the elevators, corridors, and other common areas, the need to address preventative measures is much more pressing than in an HOA with single family homes and no enclosed common areas.

It is not too soon for condominium, cooperative and HOA boards to be discussing the issue of Covid-19 with their residents. We’ve already suggested to our CALL Members statewide that the following protocol may be helpful:

Urge residents who have frequent guests to limit or reduce guest usage for the near future.
If there is Airbnb and other short-term rental activity occurring in your community that violates your governing documents, work with association counsel to curb that activity.
Place hand sanitizer stations in high traffic areas in the community.
Speak to association counsel before engaging in conversations with potential purchasers or potential renters about Covid-19 and their possible travel-related exposure.
Speak to association counsel about the applicability of emergency powers now that Governor DeSantis has declared a State of Emergency in Florida. Don’t assume that this means that your board can utilize the same emergency powers that are activated in response to damage caused by an event for which a state of emergency is declared.
Make sure you have updated emergency contact information for all owners including any residents who may be particularly vulnerable.
Let your residents know that if they are feeling ill or have any questions or concerns that they can contact the Florida Department of Health’s 24-hour hotline that can be reached at ‪1-866-779-6121.

The board may also wish to pass a rule or update an existing rule to address the use of common areas such as the pool or clubhouse for private social events hosted by residents. That rule might limit the number of such events or the number of people that can attend. In terms of suspending meetings, the board needs to continue operating and administering the association’s business and meetings are a large part of that. In most communities, board meetings are so poorly attended that they are not likely to become an issue in terms of virus transmission. However, if your board is concerned, you can explore the use of all types of technology to broadcast the meetings live so people can watch in the privacy of their homes.

There is no doubt that the flames of anxiety are being stoked by the 24-hour news cycle coverage of Covid-19. Association residents will undoubtedly be looking to their elected boards and management professionals to set the right tone when dealing with this latest challenge.

By Donna DiMaggio Berger, CALL powered by Becker

Tags coronavirus, Covid-19 No Comments »

Did you just start as a new board member in your condominium or homeowner’s association in Florida? Yours is a thankless job, but someone must do it. At Campbell, we understand how challenging your job as a board member can be. It is impossible to make everyone happy, but that does not mean you should not try.

As a new board member, it is especially important that you are well educated on your community issues and have resources available to help you understand your role as a member of the board in addressing those issues. In order to streamline your education, we have pulled together some great information that will help you understand the what, why, where, when and how of serving on a community board in Florida.

Simply fill out the form below to receive the Board Member Primer for Community Associations in Florida.

This primer includes 11 short articles you should read to understand your role and other tips and advice for new board members.

If you are new to the board and need to get certified, you can attend a Campbell Board Certification Course, go to Campbellevents.org to see all our upcoming events.

Here are some blog posts featured on Florida Association News that may also be of use:

Committees creating more work than value? Check out our blog: 5 Keys to Effective Committees and 6 Tools to Fine-Tune Your Committees
Need to hire a new manager? Check out this blog: 7 Habits of a Highly Effective Property Manager
Board meetings too long? Check out our blog: 9 Steps to an Effective Board Meeting

We hope all these resources add value and make your job as a board member easier!

Good luck and thank you for volunteering!

by Dan Tiernan, COO, Campbell Property Management

Tags condo management, hoa management, New Board Member in Florida, New condo board member, New HOA Board member No Comments »

Rembaum’s Association Roundup

A great many streets in Florida’s residential communities are lined with oak trees. While they can look so appealing as a canopy, many of these trees can raise sidewalks and driveways. Their massive roots can grow into plumbing lines, cause various trip hazards and kill the grass, too.

Until recently, it was very problematic to remove these trees for a variety reasons. Moreover, it was also expensive to deal with all of the governmental red tape caused, in many instances, by over zealous city officials, such as the city forester, who requires strict compliance with the community’s original landscaping plans, etc. Well, the Florida legislature listened to stories of local government unreasonableness and did something about it to the great satisfaction of association members everywhere.

But, there is still a problem because many local governments refuse to accept that House Bill 1159 was passed into law in 2019. This new law prohibits a local government from requiring a notice, application, approval, permit, fee or mitigation for the pruning, trimming, or removal of a tree on residential property when an arborist or landscape architect documents that the tree presents a danger to persons or property. As an important FYI, mangroves are exempt and all existing requirements for mangrove trimming, etc., remain steadfastly in place.

Apparently, the problem of local government personnel ignoring this new law is so pervasive that on January 7, 2020, the Speaker of the Florida House of Representatives, Jose Oliva, sent a memo to all Local Government Officials alerting them that they need to follow this new law and that the House of Representatives will be “diligent in executing its oversight responsibilities in order to protect the rights of property owners and to prevent illegal governmental actions that interfere with these rights. WOW!!!

If your community has a problem with tree removal caused by local government officials perhaps showing them a copy of the memo might help. Also, be sure to alert your association’s attorney to the problem so that they can intercede on the association’s behalf.

This new law is codified in s. 163.045, Florida Statutes and provides as follows:

s. 163.045 Tree pruning, trimming, or removal on residential property.—

(1) A local government may not require a notice, application, approval, permit, fee, or mitigation for the pruning, trimming, or removal of a tree on residential property if the property owner obtains documentation from an arborist certified by the International Society of Arboriculture or a Florida licensed landscape architect that the tree presents a danger to persons or property.

(2) A local government may not require a property owner to replant a tree that was pruned, trimmed, or removed in accordance with this section.

(3) This section does not apply to the exercise of specifically delegated authority for mangrove protection pursuant to ss. 403.9321–403.9333.

Tags driveways', Florida Condominium, Florida HOA, Rembaum Association Roundup, sidewalks, Tree damage, Trees No Comments »

Rembaum’s Association Roundup

The owner of real property can end up paying twice when they pay their general contractor who, in turn, fails to pay the subcontractors and suppliers. However, this very real consequence can be avoided, too. While drafted to protect contractors and suppliers, Florida law also provides substantial protection in favor of the consumer (a.k.a, the “property owner”) from having to pay twice for construction supplies and for the work itself. However, the property owner only has the protection if the process outlined in section 713.13, Florida Statutes (2019), is strictly followed. While the statutory regime can be difficult for the layman to interpret, it is not an overly complicated process to follow once understood. That said, even if an owner strictly follows the statutory regime to protect themselves from having to pay twice, many general contractors and their attorneys have found a way to dilute the consumer protection afforded by the statute and, thus, still expose the the owner of the property to the risk of having to double pay for the work. To understand the problem at hand, the overall payment process from the owner to the general contractor as contemplated by Florida’s legislation must be understood.

To start the process, the owner is required to file what is referred to as a “Notice of Commencement.” Amongst other things, the Notice of Commencement identifies the general contractor and the legal description of where the work is to be performed. It is recorded with the local county clerk’s office so that it is a part of the county’s official records. The purpose of the Notice of Commencement is to inform all subcontractor’s and suppliers that if they intend to provide goods and/or services to the property, and if they want to have proper legal standing to record a lien against the property in the event they are not paid, that the subcontractor and supplier must serve a “Notice to Owner” to the owner.

Most importantly, the Notice to Owner informs the property owner of all subcontractors working under the general contractor and all suppliers who provide supplies and materials to the job site under the direction of the general contractor or a subcontractor. In this way, the owner is informed of all of the subcontractors and suppliers working under the direction of the general contractor.

In exchange for payments to the general contractor, the general contractor provides the owner with partial payment affidavits for each payment and a final payment affidavit upon conclusion of the work at hand. The subcontractors and suppliers provide the owner “partial releases” for the payments received from the general contractor using the general contractor as the delivery conduit to deliver the partial release to the owner.

Because the owner enters into contractual “privity” (meaning, “a close connection”) with the general contractor, but not the subcontractors and suppliers, the owner provides all payments due to the subcontractors and suppliers to the general contractor who is responsible to pay all subcontractors and suppliers. But, how does the owner have assurances that the money paid to the general contractor is properly provided to the subcontractors and suppliers? Well, that is where the Notice to Owners received by the owner come in very handy. Since the Notice to Owner informs the owner of all subcontractors and suppliers hired by the general contractor expecting payment, the owner can, and most certainly should, contractually require that the general contractor provide the owner with partial releases from those subcontractors and suppliers as proof of payment. In fact, section 713.06(3)(c)2., Florida Statutes (2019), provides that “[l]ienors [referring to and meaning the subcontractors and suppliers] receiving money shall execute partial releases… to the extent of the payment received.”

Sounds simple, right? Pay the general contractor and receive partial payment releases (a.k.a, a receipt) from the subcontractors and suppliers so that they cannot later claim they are unpaid and thus, be in a position to record a lawful lien against the owner’s property. The question is when should the subcontractors and suppliers provide their partial releases? Should the subcontractors’ and suppliers’ partial releases be provided by the general contractor to the owner contemporaneously with a progress payment, or should the subcontractors and suppliers provide their partial releases only after payment is received meaning the partial releases will only be at least one progress payment behind.

In order to be fully protected from the risk of double payment, the general contractor must obtain the partial releases from the subcontractors and suppliers in advance of payment from the owner. It is as though the statutory process at hand contemplates that either the subcontractors and suppliers trust the general contractor to the extent that they provide their partial release to the general contractor in advance of payment so that the partial releases can be provided to the owner in immediate exchange for payment from the owner. Or, the statutory process implies that the general contractor has sufficient funds to pay the subcontractors and suppliers prior to payment from the property owner so as to be in a position to obtain the partial releases from the subcontracts and suppliers to provide to the owner in exchange for a partial payment. With the partial releases in hand, in the event the general contractor does not pay the subcontractors and suppliers, the owner is fully protected. It is important to understand that without the partial releases in hand, even if the owner paid the general contractor and received a partial payment affidavit from the general contractor, if the general contractor did not pay the subcontractors and suppliers, then they have a lawful right to demand payment from the owner and to record a lien against the owner’s property. Hence, without the partial releases from the subcontractors and suppliers, the owner remains in danger of paying twice for some or all of the work.

Some general contractors insist on providing the owner with the partial releases from the subcontractors and suppliers one payment behind the payments from the owner to the general contractor. Right off the bat, that should be a significant concern to the owner because it means if the general contractor fails to pay the subcontractors and suppliers for any reason whatsoever, be it due to bankruptcy, closing up shop, or running off to the Canary Islands with the money, the owner will still have to pay the subcontractors and suppliers and thus pay twice. In fact, the legislature has even gone so far as to warn the public of this danger.

Section 713.06(3)(c)1, Florida Statutes (2019), provides in relevant part that, “…[t]he owner may require, and, in such event, the contractor shall furnish as a prerequisite to requiring payment to himself or herself, an affidavit as prescribed in subparagraph (d)1., on any payment made, or to be made, on a direct contract, but the furnishing of the affidavit [by the general contractor] shall not relieve the owner of his or her responsibility to pay or cause to be paid all lienors [a.k.a., the subcontractors and suppliers] giving notice.” [Emphasis added.]

There are three methods to protect the owner from this problem:

The safest method is to ensure that the contract between the owner and general contractor contains a provision that the owner is to be provided the contemporaneous and immediate partial release of lien from the subcontractors and suppliers in immediate exchange for payment to the general contractor.
Hire a different general contractor.
Purchase a payment and performance bond which act as an insurance policy where, among other protections, the insurer will pay the subcontractors and suppliers in the event payment was made by the owner to the general contractor but the general contractor failed to pay the subcontractors and suppliers. If the general contractor is not bondable, that should serve as a warning in and of itself to look for a different contractor. The performance and payment bonds will add three to five percent to the overall project cost and are, one way or the other, paid by the owner. If this route is selected, the owner must make absolutely certain the policy will provide the necessary coverage for this concern as not all insurers may provide this coverage.

Whether an owner decides to enter into contractual privity with a general contractor who insists on providing the subcontractors’ and suppliers’ partial releases only after the owner pays the general contractor and then the general contractor pays the subcontractors and suppliers is risky because there will always remain financial exposure of paying for all or part of the work, twice. If you, your company or community association are considering hiring a general contractor then you need to be aware of this issue. It is suggested that an owner never ever put themselves into a position where there is risk of paying more than once for the same work. Ask yourself this: if the general contractor cannot not afford to pre-pay their subcontractors and suppliers or the subcontractors and suppliers will not trust the general contractor with their partial releases to be provided to the owner upon payment, then should you be doing business with that general contractor in the first place?

Personal experience has demonstrated that some general contractors will tell property owners that delayed receipt of the partial releases is customary and quite ordinary. If you find yourself in that position be sure to tell the general contractor of the beachfront property for sale in Arizona, and go find yourself a different contractor.

Tags Construction, Contractors, Florida Condo, Florida HOA, Payments, Rembaum Association Roundup, Vendors No Comments »

Even though gated communities have fences, they can still offer a false sense of security because of vulnerabilities in the physical security and a lack of a security program that integrates people, procedures and equipment.

Do gated communities mitigate criminal activity from occurring in the neighborhood? Residents tend to feel they can leave their car doors and front doors unsecured because they live in an area with fences that surround its perimeter. But criminals see gated communities as a target-rich environment because of residents that put their guard down and invite these threats into the neighborhood because of a lack of security awareness.

The National Insurance Crime Bureau reported that South Florida takes the number one spot for stolen vehicles with over 20,000 car thefts among Miami, Broward and Palm Beach counties. “A trend we’ve noticed lately is overnight auto thefts and auto burglaries in neighborhoods,” said Palm Beach Gardens Police Major Rogers.

When it comes to the people aspect of a security program, it includes all who live and work in that community, and this requires security Buy-In from everyone to help foster a safe and secure community.

Residents

The trees around the home should be trimmed and the branches and bushes should be trimmed to 3ft around the perimeter of the house. This allows for natural surveillance from the street and other dwellings.
Turning on the outside lights is a crime prevention technique that helps illuminate the property which will deter criminal activity. LED lighting will provide the best illumination and is energy efficient.
Awareness – Residents should be aware of their surroundings by being “situationally aware.” Knowing who your neighbors are and who should be in the neighborhood.
Establish a “See Something, Text Something” program that can send non-emergency text messages to a security patrol officer to investigate.

Community Staff

Community Staff such as the landscapers and maintenance personnel should promptly report issues that may create vulnerabilities, such as a broken fence or wall.
Trimming bushes and trees will allow natural surveillance and natural lighting into the community.
Communications through management to alert residents of crime issues in the community and around the local areas.
Implement a community newsletter with security tips and updates for residents.

Security Staff

Training and pro-active management from the security service vendor is essential to the implementation of the community’s security program.
Access control, such as a staffed security gate or a virtual guard is a vital function for deterring criminal activity and unauthorized access.
Some properties may have a security patrol service. These officers should be engaged in the community and deter criminal activity. Patrol lights should be on at night, and front windows should always be open on patrol (Weather Permitting) to allow the officer to use their senses. They should also wave at people to see if someone may act suspicious, typically non-suspicious people wave back.
Also, if someone may seem suspicious, these officers should have the ability to qualify people by asking, “Can I help you?” Criminals do not want to be recognized or identified, and this can help deter criminal activity in the neighborhood by having pro-active security services.

Procedures

Security Policies– the community stakeholders such as the Board of Directors create security policies. These are the security rules of the community that are executed by the property management company to ensure the safety and protection of the community assets. These may include, for example, no person being allowed to enter the community unless they present a valid ID. Then this is executed by the security staff controlling access into the community.
Security Procedures are directions for management and the security staff to follow that provides them with detailed instructions on how to carry out the security policies.
Post Orders are a procedural checklist for security staff to carry out of a specific post that is short instructions created from the security procedures.

Equipment

Physical security is a vital function of an adequate security program. Communities are not looking to build Fort Knox, but having physical barriers such as fences, walls, and vegetation around the gated community helps define the borders, creates natural access control, deters, and delays unauthorized access.
Entry points for gated communities require a barrier to prevent unauthorized access to vehicles and people. From gate arms to automated gates, having the correct equipment will help mitigate threats gaining access.
Camera systems help deter and detect criminal activity. Adding a license plate recognition camera will track all license plates that made entry into the community and create data that can be used quickly by law enforcement. Cameras should be placed in strategic locations that allow for a full view and can identify both people and vehicles. Video surveillance should be applied based on the application. Why are you recording this area and what type of footage would be helpful should an issue occur? Do the cameras alert, or must they be watched 24/7? Camera technology today is impressive and can alert management or security staff should something trigger its alarm. For example, teens in the community pool after hours, the alarm is set when the pool is closed, and the camera will alert should a person make entry after hours.
Placing security signs on the outer perimeter that provide verbiage such as “No Trespassing, Private Property or Property under Video Surveillance.” These signs should be visible for pedestrians and be placed in 100ft intervals on the wall/fence or a pole. Signs are a deterrent.

Having a security program that integrates people, procedures, and equipment should be the goal of any gated community to protect their assets, reputation, and to promote a safe and secure community.

By Patrick Miller, CPP. Patrick is a Board Certified Security Consultant and a trusted security advisor for residential and commercial clients. He is a Marine Corps Combat Veteran and has a Bachelor’s Degree in Security Management. Additionally, he was appointed by the State of Florida and served a 4-year term as a subject matter on the Private Investigations, Recovery, and Security Advisory Council under the Department of Agriculture and Consumer Services and was appointed by Governor Desantis to serve on his transitional Public Safety Committee. Patrick continues to help his fellow Veterans as a board member of the Wounded Veterans Relief Fund.

Patrick Miller, CPP
Email: pjmiller@invictussecurity.com
Phone: 561-351-3390
www.invictussecurity.com

Tags Communities, Fences, Florida Condo, Florida HOA, Gated, Gated communities, Invictus, Safety, Security No Comments »

Operating Your Association During The Coronavirus Outbreak: Navigating the Turbulence

Exploiting the Coronavirus: Watch out for These Scams!

Operating Your Associations During the Coronavirus Outbreak

Special Coronavirus Emergency Powers Edition: Board Emergency Powers for Condominium, Cooperative & Homeowners’ Associations

Rembaum’s Association Roundup

The 7th Annual Florida Community Association Journal’s Readers’ Choice Award Winners have been Announced

CALL ALERT: Covid-19 and Your Residential Community

Are You a New Board Member? Congrats! Or, Condolences! Here are some Resources to Help Make Your Job Easier!

How To Remove Troublesome Trees

Rembaum’s Association Roundup

Construction Progress Payments: The Hidden Trap

Rembaum’s Association Roundup

Gated Communities have Fences; They can still offer a false sense of security

Enjoy the Blog? Sign-up for the FAN Newsletter!