Florida Association News Blog

The dog barks, and the parrot squawks. A neighbor is cooking with too much garlic, again. An owner is smoking non-stop on their balcony making it unpleasant for everyone else. A neighbor, several neighbors, or even many neighbors are complaining to the board. What is a community association board to do?

In dealing with any possible nuisance, the board should first decide whether or not the activity in question constitutes a “nuisance.” Bear in mind, an individual’s personal hypersensitivity to another’s activity is not a nuisance. Ask yourself, if you were the ordinary person, a judge or a member of the jury, do you believe that the conduct in question is so noxious that it truly rises to causing a nuisance? Is it only one person, or family, that is bothered by the alleged noxious activity or is it half of the community? Singular neighbor to neighbor disputes are not a matter for the board to contend. The board should not put itself into a position as the “referee.” Arguably, the only time a board may be obligated to act in a neighbor to neighbor dispute is when a Fair Housing Act violation occurs or when the board has actual knowledge of a life-threatening activity taking place.

In the event the board determines that a nuisance is actually occurring, then it is time to act. The board, typically through the manager, should first send a letter to the offending owner alerting them to the nuisance behavior, explain how the behavior is creating the nuisance and importantly, provide the specific relief sought. The letter should be firm, but not over-the-top. Ask yourself, if you were the owner causing the nuisance behavior and you received the letter from your association, would you respond in a positive manner? Remember the golden rule, to treat others as you wish to be treated.

After sending the initial letter, the dog still barks, and the parrot still squawks. Now what? Well, it is time to consider other measures such as fining and use right suspensions. Pursuant to legislation first enacted in July 1, 2015, the board, at a properly noticed board meeting, must set the fine or use right suspension. However, before a fine or suspension can be imposed against the offending owner, a 14-day written notice and opportunity to appear in front of the grievance committee (a/k/a the “fining committee”, the “rules committee”, the “violations committee”, etc.) must be sent to the owner. If the grievance committee does not agree exactly with the board’s prior decision to fine and/or suspend use rights, then the fine or suspension may not be imposed. If the grievance committee does so agree, then the offending owner must be provided with written notice of such decision.

If the nuisance continues, another tool that is available to community associations is the filing of a lawsuit against the owner causing a nuisance. In some instances, it may be necessary for condominium associations to file an arbitration action with the Division of Florida Condominiums, Timeshares, and Mobile Homes. For a homeowners’ association, before filing a lawsuit, the association must comply with mandatory mediation requirements set out in Chapter 720, Florida Statutes.

If the arbitration or mediation, as the case may be, is not successful in curbing the nuisance behavior, then it is time to seek relief by filing a lawsuit in the local Circuit Court asking for an injunction to curtail the behavior. Obviously, the board will need to discuss this situation, in advance, with the association’s legal counsel.

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. He is a regular columnist for The Condo News, a biweekly publication and was inducted into the 2012, 2013 & 2014 Florida Super Lawyers. He can be reached at 561-241-4462.

Tags fair housing act, Legal, Neighbors, Nuisance, Pets, Rembaum Association Roundup No Comments »

On May 20 2009, just after the peak of the national foreclosure crisis, a federal statute was enacted to help protect a residential tenant who was renting a unit subject to foreclosure from being evicted without being afforded a reasonable amount of time to find alternative housing.

The federal law was known as “Protecting Tenants at Foreclosure Act of 2009”. It generally provided that a bona fide tenant was authorized to remain in a residential unit that was acquired by a new party through foreclosure for the balance of the unexpired term of the lease, unless the unit was acquired by a party that intended to occupy the unit, in which case the tenant was authorized to remain in the unit for ninety days after receiving a notice to vacate.

For purposes of the federal law, a “bona fide tenant” was a tenant who was not the mortgagor or the parent, spouse, or child of the mortgagor and who was under a lease that was the result of an arms-length transaction where rent was not substantially lower than fair market value.

The federal law assured that residential tenants would have a reasonable amount of time to plan and find alternative housing after the unit they were renting was foreclosed and acquired by a new party. However, it also assisted community associations in finding desirable tenants to rent units they owned through the foreclosure of the association’s assessment lien for a fair market value, which then helped the association recoup unpaid assessments and bad debt otherwise attributable to the unit.

The protections of the federal law were intended to “sunset”, which is a term meaning ”to expire”, on December 31, 2012. However, the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act) later extended the sunset date to December 31, 2014. Once the federal law finally expired on January 1, 2015, tenants of residential property in Florida no longer had any special protection from eviction by parties acquiring such units by foreclosure.

Then, approximately six month later, the Florida legislature adopted its own version of the law as part of the Florida Residential Landlord and Tenant Act. Specifically, section 83.561, Florida Statutes, became effective on June 15, 2015, and provides that “if a tenant is occupying a residential premises that is the subject of a foreclosure sale, the purchaser named in the certificate of title is permitted to give a tenant a thirty day notice to vacate and the tenant must comply”. Therefore, as of June 15, 2015, residential tenants had a much shorter timeframe of thirty days’ notice to vacate a unit acquired by foreclosure.

Finally, on June 23, 2018, the federal Protecting Tenants at Foreclosure Act became effective again. It no longer contains any sunset or expiration date; so it is here to stay. Since a federal law will supersede a Florida law when it is more stringent, the provisions of the Federal Protecting Tenants at Foreclosure Act giving tenants more time to vacate residential property after it is acquired by a new party through foreclosure will apply to transactions in Florida despite the shorter timeframe provided by state statute.

Tags Eviction, Foreclosure, Legal, Rembaum Association Roundup, Tenant No Comments »

As happens far too often, contractors bid on an improvement project, start the work, only to later walk off the job. The contractor might do this for one of many reasons: the job was not bid correctly, prices go up, the laborers demand more money, and anything else that leads the contractor to believe they will make less in profits than expected. Now, the association is left with a partially completed project, leaving the property unusable, with no contractor to complete the work. What should the board do in this situation? How does the association evaluate its damages against the contractor who walked off the job? Such questions were forced to be addressed by single family homeowners in the case of Forbeses v. Prime General Contractors, Inc., decided by the Second District Court of Appeal of Florida in an opinion filed on September 7, 2018.

In this case, the Forbeses contracted with Prime General Contractors, Inc. (“Prime”) for the complete renovation of their home. The contract required that the Forbeses pay Prime the total amount of $276,000 in separate payments due at five defined milestones of the project: (1) 25% due upon signing the contract; (2) 25% upon completion of demolition; (3) 25% upon completion of the “dry-in” stage of construction; (4) 15% after roofing and siding installation; and (5) the remaining 10% upon completion of construction. The construction contract also provided that “any alteration or deviation from the contract must be made in writing and signed by both Forbeses and Prime.”

The construction contract was signed, and Prime began the necessary demolition, requiring the Forbeses to pay the first two milestone payments in the total amount of $138,000. After demolition was completed, Prime informed the Forbeses that the cost of the materials needed for the project had increased requiring an increase in the cost of the project to $550,000. Prime demanded that the Forbeses immediately pay the third milestone payment and an additional $31,450 for the work Prime had already completed and provided the Forbeses with a written change order for the increase in costs to modify the construction contract. Relying on the costs quoted by Prime, the Forbeses refused to sign the change order, resulting in Prime walking off the job. Because the property had only reached the demolition phase, the property was left uninhabitable.

Needing a place to live, the Forbeses rented a home and began the search for another contractor to complete the work. Five contractors later, the Forbeses could not find a contractor willing to complete the work. The Forbeses ultimately purchased another home to live in and were not able to pay both the mortgage on the project home and the mortgage on the residence home. As a result, the project home fell into foreclosure.

The Forbeses sued Prime for breach of contract, seeking the following damages: (1) payments they made to Prime under the contract; (2) payments they made for updated architectural plans; (3) certain other expenses, including rent for alternate housing; and (4) a loss of equity in their home they had prior to contracting with Prime. At trial, the Forbeses argued that Prime materially and completely breached the construction contract by demanding payments it was not entitled to under the contract and then walking off the job. Prime defended by arguing that, among other things, the Forbeses were also in breach and failed to mitigate their damages. The trial court found that Prime did in fact materially breach the contract but only awarded damages for rent of alternative housing because the trial court took the position that damages in this case were to put the Forbeses in as good a position as if the contract had been fully performed, of which the Forbeses provided no evidence, and that the Forbeses did not engage in mitigation efforts.

The Forbeses appealed the trial court’s decision for two reasons: (1) the trial court used the incorrect method of calculating damages by taking the position that damages in this case were to put the Forbeses in as good a position as if the contract had been fully performed; and (2) the trial court’s finding that the Forbeses failed to mitigate their damages is unsupported by evidence. The Second District Court of Appeal of Florida agreed with the Forbeses.

The Court explained that, in the event of a party’s material breach, the non-breaching party may treat the material breach as a breach of the entire contract, at which time the non-breaching party can suspend their own performance of the contract and seek damages to either:

1. return the non-breaching party to the position the non-breaching party was in prior to contracting with the breaching party, or

2. put the non-breaching party in the position the non-breaching party would have been in had the contract been fully performed.

Based upon the damages sought by the Forbeses, the trial court should have concluded that the Forbeses were seeking damages to restore them to the position they were in prior to contracting with Prime. Because the trial court did not do so, the Court held that the trial court used the incorrect method to calculate damages in this case.

As to mitigation of damages, the Court explained that there is no “duty to mitigate” in contract cases but that the non-breaching party is prevented from recovering damages that the non-breaching party could have reasonably avoided. A reduction in contract damages should only be considered where the Forbeses failed to undertake measures to avoid damages that were available to them without undue effort or expense. Given the circumstances of the Forbeses with an uninhabitable home and unable to find a willing contractor, the Court found that there was no competent substantial evidence to support a damage reduction.

Due to the trial court’s failure to apply the correct method of calculating damages and its improper application of a reduction of damages for failure to mitigate, the Court reversed the decision of the trial court so that the Forbeses would be awarded the full amount of damages to which they were entitled.

This case is a classic example of the need to purchase both performance and payment bonds to accompany the construction project at hand. While doing so will cost the association an additional 2% to 5% of the project costs, these bonds ensure that, if the general contractor does not pay the sub-contractors and suppliers and/or walks off the job, the bond surety, pending the terms of the bond, will be obligated to step in. In this author’s opinion, payment and performance bonds are worth their weight in gold… and then some.

Tags Construction, Contractors, Contracts, Florida Condominium, Florida HOA, Improvement Project, Legal, Rembaum Association Roundup No Comments »

The ability to impose a fine on an owner who has violated the conditions and regulations of a community association is one of the tools an association may use to bring about compliance with its governing documents. Notwithstanding the provisions regarding the fining process that may be set out in the association’s governing documents, the association must also follow the fining procedures as provided by Chapters 718, 719, and 720 of the Florida Statutes, governing condominiums, cooperatives, and homeowners’ associations, respectively. Particularly, these fining procedures require that the association’s board of directors provide the violator with at least 14 days’ written notice to appear at a hearing before an impartial committee prior to imposing any fine. However, what if only 13 days’ written notice is provided to the violator? Surely, one day less would make no difference, especially where the violator has failed to respond to multiple requests for correction of the violation? But, it does make a tremendous difference, as the homeowners’ association in the case of Dwork v. Executive Estates of Boynton Beach Homeowners Association, Inc., decided by Florida’s Fourth District Court of Appeal, learned the hard way.

In this case, the owner’s property needed maintenance and repairs to its roof, driveway, and fence, which are the responsibility of the owner pursuant to the association’s governing documents. The association gave the owner numerous notices providing the owner with multiple opportunities to conduct the necessary maintenance and repairs in order to avoid the imposition of fines. Despite the association’s efforts, the owner ignored the association’s many notices. As a result, the board sent the owner a written notice informing the owner that, in 13 days, a hearing would take place before the association’s fining committee to consider the owner’s maintenance violations. At the hearing, the committee voted to approve the fine for each of the owner’s violations, which was thereafter imposed by the board. Written notice of the imposition of the fines was sent to the owner. However, the owner never responded and the fines began to accrue. After written demands to the owner for payment of the fines were sent and similarly not responded to, the association recorded a lien against the owner’s property for the accrued amount of the fines and the fees and costs incurred by the association, totaling $8,135.00, and ultimately sued for foreclosure of the lien and for money damages. (Please note that the events in this case occurred before recent legislative changes to the fining process that now requires the board to first set the fine at a properly noticed board meeting followed by providing the offender a 14 day advance notice to appear before the fining committee who can only approve the board’s action of imposition of the fine. If the committee takes any action other than approval, such as modification of the fine, then such activity operates to fully negate the fine.)

At trial, the court denied foreclosure of the lien because the 13 days’ notice provided to the owner by the association did not comply with the strict 14 days’ notice requirement set out in the Florida Statutes. However, the trial court ruled in favor of the association regarding the claim for money damages because the “equities of this case were with the association and against the owner.” Due to the trial court’s determination in favor of the association for money damages, the owner appealed the trial court’s decision.

In defense of the owner’s appeal, the association argued that substantial compliance with the notice requirements set out in the Florida Statutes, was sufficient, especially since the owner was not prejudiced by the lack of an extra day’s notice. Not persuaded by the association’s argument, Florida’s Fourth District Court of Appeal held that the association could not enforce its lien for fines against the owner because the association failed to provide the requisite 14 days’ notice. The Court found that the 14 days’ notice requirement is a condition precedent to the attachment of a lien and must be strictly construed because Florida law is clear and unambiguous and does not allow for any discretion in compliance with its provisions. Without proper notice, the owner is deprived of due process rights and is unable to have sufficient time to prepare a defense to a claim of violation. As a result, any lien recorded due to the violation is invalid. For these same reasons, the appellate Court reversed the trial court’s determination in favor of the association for money damages, too, without regard to the appellate court’s agreement with the trial court that the equities in this case favored the association.

It is important to note that this case is with regard to a homeowners’ association, not a condominium or cooperative. Pursuant to Chapter 720, Florida Statutes, a fine may exceed $1,000 in the aggregate only if so provided in the declaration, and a fine of $1,000 or more can become a lien against the owner’s property only if provided for in the declaration. Such was the circumstance for the association in the above discussed case. However, under Chapters 718 and 719, Florida Statutes, a fine levied by a condominium or cooperative association respectively, cannot exceed $1,000 in the aggregate and cannot become a lien against the owner’s property.

Although not addressed by the Dwork case, what if your association’s declaration provides that monies expended by the association on behalf of a member who fails to perform a maintenance obligation can be collected in a manner akin to an assessment, or what if the declaration converts the monies expended, in one manner or another, to a special assessment against the lot? If so, this process is not exactly provided for in the Florida Statutes and thus raises an interesting question as to the notice procedures required to provide to the member. Let’s say the declaration provided the association with a self help remedy in the event a member fails to keep their driveway clean so that the association performs the task and after repeated requests the owner fails to reimburse the owner. Now it is time to treat the monies expended as an assessment levied against the lot, but how?

Some might say no further activity is necessary. But, a clever defendant could argue an extra step was necessary because the levy of any assessment, be it regular or special, requires a separate 14 day notice to be provided to the owner(s) subject to the assessment. Therefore, the board, at its next board meeting should take the extra step of converting the monies due into an assessment by adding a line item to the agenda for the consideration of conversion of the monies due(s) by member into an assessment and by sending the violator a 14 day advance notice of the board meeting where the board will act to consider this issue. In such a circumstance, before filing a lawsuit against a member of the association who failed to reimburse the association, be sure to get guidance from your association’s attorney as to how best to deal with this issue.

Tags Compliance, Fining, Florida Condominium, Florida HOA, Notices, Rembaum Association Roundup No Comments »

There appears to be some confusion surrounding the compliance date of the Engineered Life Safety System for those condominium associations that previously voted to opt out of the requirement to install condominium fire sprinkler retrofit. What is not confusing is that the safety of all occupants living in high-rise condominiums is paramount. No one wants to be responsible for death or injury caused by an incident that can be minimized with necessary precautions. How should the board of directors of a “high-rise” condominium balance the needs for fire safety against the considerable expense incurred in the implementation and installation of fire safety systems?

A high-rise building is a building where an occupiable floor is greater than seventy-five feet (75’) above the lowest level of fire department vehicle access. Pursuant to Florida law, condominiums that are considered high-rise buildings are required to have, or otherwise install, a fire sprinkler system, unless the condominium association had previously opted out, or is otherwise exempt, as further addressed below, by following the proper statutory protocol for which the deadline to do so has long since passed. However, for those high-rise condominiums that did successfully opt out, the association is still responsible for the installation of an Engineered Life Safety System (the “ELSS”).

A caveat, and for some condominium associations, a blessing, is that the fire sprinkler system (or ELSS) is not required if every unit in the condominium has exterior walkway access. Therefore, if the only access into the condominium unit is through an interior hallway, the condominium association would need to install a fire sprinkler system (or have already opted out and thereby need to comply with the requirements of the ELSS).

Section 718.112(2)(l), Florida Statutes, is quite clear on the requirements to install a fire sprinkler system, but the statute does not address the condominium association’s requirements for the implementation of the ELSS – that comes from the Florida Fire Prevention Code (the “FFPC”). The FFPC defines an ELSS as a system which contains any or all of the following systems:
1) partial automatic sprinkler protection,
2) smoke detection alarms,
3) smoke control,
4) compartmentation, and/or
5) other approved lifesaving systems.

An ELSS must be developed by a registered professional engineer experienced in fire and life safety system design and authorized by the local compliance authority. Typical examples of ELSS within a high-rise condominium building could be a partial fire sprinkler system that serves the common areas, fire and smoke alarms that are in compliance with the local fire authority standards, and fire proof walls, floors and corridors designed to prevent the flow of the fire and smoke throughout the condominium building.

As to any high-rise building required to install the automatic fire sprinkler system that did not opt out, the FFPC requires that any condominium that meets the definition of a high-rise building, must, by December 31, 2019, have installed the automatic fire sprinkler system. As to those who opted out, the exact date for ELSS compliance is anything but clear. The Condominium Act does not provide a date, and while the FFPC provides a clear deadline for the installation of the automatic fire sprinkler system, the FFPC does not patently provide a similar date for the installation of the ELSS. Some lawyers and fire safety professionals take the position that, because the ELSS is a substitute for the automatic fire sprinkler system, December 31, 2019 is, therefore, the ELSS compliance date. However, others may take the position that the lack of patent clarity in the FFPC means no deadline is provided.

Whether the local fire safety authorities will actually interpret and enforce the Florida Fire Prevention Code to require an ELSS approved plan, or ELSS completed installation by December 31, 2019 or even still, take the position that no ELSS deadline is provided at all is anyone’s guess. The answers might even vary by jurisdiction. What is clear is that:

1) The Florida legislature needs to address the ELSS compliance deadline to provide clarity for the betterment and safety of all of Florida’s high-rise communities; and

2) Any board member of a high-rise condominium association with questions regarding any of the issues addressed herein needs to consult with both their association’s legal counsel and with the local fire safety officials with jurisdiction for enforcement of the ELSS.

Tags ELSS, Engineered Life Safety System, Fire Sprinkler, Florida Condominium, High rise, Legal, Rembaum Association Roundup, Requirements, Safety No Comments »

While gasoline powered vehicles are still dominant on Florida’s roads, the ever-growing presence of electric vehicles cannot be ignored. The number of electric vehicles on our highways and streets continue to climb as they become more and more affordable. As consumers continue to embrace a greener lifestyle, Florida’s lawmakers have paved the way for condominium unit owners’ need to have access to electric vehicle charging stations. Effective July 1, 2018, new legislation, section 718.113(8) of the Florida Statutes, became effective which facilitates a unit owner’s ability to install and use an electric vehicle charging station within the unit owner’s limited common element parking space.

This new legislation prohibits the condominium association’s board of directors and a declaration of condominium provision or other restrictive covenants from prohibiting (or being enforced to prohibit) any unit owner from installing an electric vehicle charging station within the boundaries of the unit owner’s limited common element parking space, subject to certain conditions as laid out in this new legislation.

It is important to note that the right of installation of an electric vehicle charging station is ONLY applicable to the “limited common element” parking space and does not apply to a “common element” parking space. There is an important difference between a common element and a limited common element parking space. While all unit owners own an undivided interest in both, the limited common element parking space vests an individual use right to the owners of the unit to which the limited common element is appurtenant (connected to). Therefore, associations may prohibit the installation of electronic vehicle charging stations within the common elements or other portions of the condominium property that are maintained for the general use and benefit of all unit owners, but not as applied to a limited common element parking space, subject to the limitations and conditions of the legislation.

Thus, section 718.113(8) of the Florida Statutes, provides that, in considering a unit owner’s request to install an electric vehicle charging station, the association first must determine whether the charging station is to be installed within the boundaries of the requesting unit owner’s limited common element parking space. Whether a parking space is a limited common element is determined by the provisions of the declaration of condominium designating the parking space for the exclusive use and benefit of the owners of a specific unit.

If it is determined that the parking space is a limited common element, the unit owner may have the electric vehicle charging station installed subject to the requirements of the new legislation. These requirements provide that:

1) The installation cannot cause irreparable damage to the condominium property.

2) The unit owner is responsible for the costs of installation, operation, insurance, maintenance, repair, and removal of the charging station.

3) The electricity for the electric vehicle charging station must be separately metered and payable by the unit owner.

All of the above costs, if left unpaid by a unit owner, are enforceable by the association as any other assessment due pursuant to section 718.116, Florida Statutes, meaning if left unpaid their condominium unit can be foreclosed.

Additionally, as provided by the new legislation, the association can and should require that the unit owner:

1) comply with bona fide safety requirements, consistent with applicable building codes or recognized safety standards, for the protection of persons and property;

2) comply with reasonable architectural standards adopted by the association that govern the dimensions, placement, or external appearance of the electric vehicle charging station, provided that such standards may not prohibit the installation of such charging station or substantially increase the cost thereof;

3) engage the services of a licensed and registered electrical contractor or engineer familiar with the installation and core requirements of an electric vehicle charging station;

4) provide a certificate of insurance naming the association as an additional insured on the owner’s insurance policy for any claim related to the installation, maintenance, or use of the electric vehicle charging station within 14 days after receiving the association’s approval to install such charging station; and

5) reimburse the association for the actual cost of any increased insurance premium amount attributable to the electric vehicle charging station within 14 days after receiving the association’s insurance premium invoice.

Although your condominium association may not have received a request for the installation of an electric vehicle charging station as yet, your board of directors should be prepared for such a request. After all, it is only a matter of time. Therefore, condominium boards should consider adopting rules and regulations governing the process by which a unit owner is required to make such a request and provide for procedures by which the board of directors is to conduct its review and approval of the request.

While a unit owner desiring to install and use an electric vehicle charging station within his or her limited common element parking space will be able to do so by way of this new legislation, the association still has the authority to govern certain aspects of the installation and use and should be proactive in making rules and regulations in line with this authority. Your association’s legal counsel can be of great benefit to the board in creating a clear and concise process governing the electric car charging stations installation and use.

Tags Charging Station, Electric Vehicle, Florida Condominium, Legislation, Parking, Rembaum Association Roundup 1 Comment

Florida HOA & Condo Board Certification Course Do you have questions about community association law? Or, are you a new board member looking to attend an HOA and Condo Board Certification Course?

Listed below are nine upcoming HOA and Condo Board Certification Courses. These courses are free, and DBPR approved. These courses are a board member’s guide to the statutes and rules governing associations in Florida and fulfill condominium and HOA board member state certification requirements.

2019 Board Certification Course in Port St. Lucie – Tuesday, January 15, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in West Broward – Wednesday, January 30, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Parkland – Friday, February 8, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Jupiter – Wednesday, February 13, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Fort Lauderdale – Tuesday, February 26, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Palm Beach Gardens – Tuesday, March 12, 2019 from 9:00 AM to 12:00 AM. Click here for more information and to register.

2019 Board Certification Course for COBWRA – Wednesday, March 13, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Pompano – Tuesday, April 2, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

2019 Board Certification Course in Highland Beach – Thursday, April 11, 2019 from 9:00 AM to 12:00 PM. Click here for more information and to register.

by Ashley Dietz Gray, Marketing Director, Campbell Property Management

Tags 2019 Board Certification Courses, 2019 Condo Board Certification Courses in Florida, 2019 HOA Board Certification Courses in Florida, Florida Condo, Florida HOA, Free DBPR Board Certification Courses 1 Comment

Pat Brown is the President of The Hamptons, a homeowner association of 152 units that is one of the 25 villages of the Aberdeen Property Owners Association (POA) in Boynton Beach, Florida. Pat also serves on the Aberdeen POA Master Board which represents 1,400 acres of property that includes 2,418 homes and recreational facilities.

Pat moved to Boynton Beach in 1976 after living in Connecticut and New York. Pat went to school at St. John’s School of Nursing in New York. After completing her studies and moving to Boynton Beach, Pat began her career as a nurse practitioner at Bethesda Hospital. She became the Director of Surgical Services and remained at Bethesda for over 30 years.

Pat has two children, Tara Lynn and Jeffrey. Tara is an attorney and Jeffrey is a fire fighter paramedic in Boynton. Pat’s hobbies include antiquing furniture and playing games, especially Monopoly which is her favorite. She also enjoys reading anything, from books to the ingredients list on a tube of toothpaste. Pat has been on the board for a total of eight years, two years as a Director and the past six as the President.

This past week, I spoke with Pat to discuss her experiences working as the President of The Hamptons HOA and as part of the POA and Advisory Board:

Ashley: What do you like most about being on your neighborhood board?

Pat: I enjoy working most of all with the community. A large part of that is making sure that the community is well maintained. There are a lot of older neighbors, so I like to help the community when I can. But most of all, maintaining the pristine condition of the community and by doing that, keeping up property values of the homes within the community.

Ashley: What has been your proudest accomplishment during your time on the Hamptons board?

Pat: A significant accomplishment during my time on the board was when we were able to revise and update our declarations and covenants. Another proud accomplishment was when we were able to upgrade the pool area. We bought new furniture, painted the area, and installed two new bathrooms. It is a beautiful community pool enjoyed by many of those who live here.

Ashley: Has your community gone through any rough spots, if so, how did you overcome these?

Pat: Every association board comes across difficulties. More recently, we have worked with the County Commissioner to make sure that sober homes are not moved into the community. We have absolutely nothing against them, we just do not feel that is it appropriate for our neighborhood.

Ashley: What advice would you share with other board members?

Pat: I would tell new or potential board members that If you’re going to do it, you must do it with an open heart. Being an association board member is a lot of work, but it truly can be a rewarding experience. You need to be committed to the obligations you are undertaking. Having a good sense of humor is also very beneficial. If you don’t have one at the start, you’ll likely develop one! Having a great management team is also essential, as it is something that can either make you or break you as a board. Lisa Teets, our Property Manager is wonderful. Lisa, Scott and Maria are always there and always do what they can to go above and beyond for the community by doing things that are not in their job descriptions. Before Hurricane Irma last year, they were there until the last minute before the storm to make sure we were prepared, and they were there immediately after the storm to help.

Ashley: How does your community communicate with residents?

Pat: One way we communicate to the residents is via email blasts. We also have a Hampton website we recommend all residents to visit where we post pertinent information about the community.

Ashley: You are also a board member on the Master Board, Aberdeen POA. Are there differences in the way things are done? Is there any advice you’d give another Board Member who is in a similar situation?

Pat: Overall, they are quite similar experiences. The POA is just a bigger picture in the sense that it includes all the communities. The main goal is to maintain and improve property values so that’s what we strive for in the end. I would likely give them the same advice I would give to a single association board member.

The Hamptons has been managed by Campbell Property Management since 2012 and Aberdeen POA has been with Campbell since 2003. Both communities are managed by Lisa Teets.

“Pat is very dedicated and an amazing Board Member. She always puts the association first; it is a true privilege to work with her,” says Lisa.

“Meet the Director” is an ongoing series where we recognize an outstanding Director from a community association in South Florida.

Serving on the Board of a Community Association is a challenging and often thankless job. There are thousands of dedicated volunteers in South Florida that have stepped up to lead their communities and we hope this series serves as a reminder to us all – to thank those that have invested their time and energy to make their communities a better place to live.

Tags Aberdeen, Aberdeen Master, HOA president in Florida, Meet the Director, Pat Brown - Aberdeen, Property Owners Association, The Hamptons No Comments »

Many Floridians live within a community operated by an association of some kind, be it a community of single-family homes under the jurisdiction of a homeowner’s or property owner’s association, or a condominium building maintained by a condominium association. These owners should be well-aware that many aspects of life within these communities are subject to restrictions outlined in a set of governing documents, which include a declaration, articles of incorporation, bylaws, and rules and regulations. While the declaration, articles of incorporation, and bylaws are typically recorded among the public records of the county in which the community is located, the rules and regulations are typically not recorded.

Because rules and regulations are usually amendable by the approval of the board of directors only (as opposed to the additional approval of the membership), allowing rules and regulations to be unrecorded provides the board of directors with the flexibility to amend the rules and regulations as the need arises without the added expense and time required to record these rule amendments among the county’s official records. However, this option has changed for homeowner’s associations as a result of recent legislative changes which took effect on July 1, 2018.

How has this changed? Pursuant to new provisions set out in Section 720.306(1)(e) of F.S., “[a]n amendment to a governing document is effective when recorded in the public records of the county in which the community is located.” While this has certainly always been the case for a declaration, articles of incorporation, and bylaws, this is new as to rules and regulations of a homeowner’s association because they were added to the definition of the term “governing documents” as set out in Section 720.301(8), F.S. when the Statute was amended in 2015, effective on July 1st of that year.

Due to the fact that many homeowner’s associations have not recorded their rules and regulations in the public records of the county, consideration should be given to record the all of the rules and regulations, particularly if there are plans to amend them. Failing to record the rules and regulations prior to (or at the same time as) recording an amendment will possibly create what is termed a “wild” amendment, which is not connected in the public records to the document it is trying to amend. Additionally, if an amendment to the rules and regulations must be recorded in order to be effective, it is logical to conclude that the initial rules and regulations must also be recorded in order to be effective. Under Section 720.303 F.S., all governing documents are required to be recorded in the public records. Therefore, a homeowner’s association should record its rules and regulations in the public records in order to avoid this possible claim against the legal effectiveness of the rules when it becomes necessary for the association to enforce its rules against an owner.

As with any other amendment to a homeowner’s association’s governing documents, within thirty (30) days after recording an amendment to the governing documents, the homeowner’s association must provide either a copy of the recorded amendment to the members or, if a copy of the amendment was provided to the members before they approved it (for those communities with owner approval requirements for rules) and the amendment was not changed before the vote, a notice providing that the amendment was adopted, identifying the official book and page number or instrument number of the recorded amendment, and that a copy of the amendment is available at no charge to the member upon written request to the association.

While the consequences of this new legislation may have been unintended, it is the law until amended otherwise or an appellate court makes a contrary ruling. Although this will likely result in some minor additional costs to homeowner’s associations, this is a good opportunity for a board of directors to examine their existing rules and regulations and update them prior to recording them among the public records.

Board members of an association subject to Chapter 720, Florida Statutes, should discuss the implications created by this recent legislative change with their association’s lawyer. It is recommended that you have experienced association counsel review any existing rules and regulations prior to recording them to ensure that they are enforceable and do not unnecessarily expose the association to liability (e.g., Fair Housing violations). As to any proposed rules not yet adopted the same holds true. Experienced association counsel should review them to both ensure enforceability and to steer clear of unintended negative consequences.

Tags Florida HOA, Governing Documents, Homeowner association, Legislative Records, Records, Regulations, Rembaum Association Roundup, Rules 4 Comments

Jackie Witt is the President of the Winston Trails Foundation Master Association, an HOA of 1,891 homes in Lake Worth, Florida. Jackie has been on the Board for a total of five years, and she has held the role of President for the past three years. She has also served as Vice President of the Oakmont Village Board, which is a sub-association located in Winston Trails for the past eight years.

This past week, I spoke with Jackie to discuss her experiences working as the President of The Winston Trails Foundation Master Association:

Ashley: What do you like most about being on the Board?

Jackie: Most of all, working with the community. I enjoy meeting the residents here at Winston Trails, listening to their concerns and hearing them out about different issues that are important to them. I am a people person. Keeping our community safe and desirable is also what I love about being on the Board. I want the residents to feel safe and happy living at Winston Trails.

Ashley: Do you have any outside resources that you find valuable to your association and to you?

Jackie: We work very closely with Paula Rappold, our Property Manager to make sure that the Board is doing everything we can to keep the community safe, clean and so on. We have a very good relationship with Paula and the staff. I attribute that to Paula and her longevity at Winston Trails.

Some of the members are also part of the Coalition of Boynton West Residential Associations (COBWRA), and attend their meetings, which are an excellent resource. We also have a County Commissioner that lives in the community. Having all these resources helps us to hear about potential changes that could impact our community and gives us time to act on them before decisions are made. For example, we found out that the Solid Waste Authority (SWA) wanted to change to a one day pick up for wastes. The Board and the residents were very opposed to this, so we held a Board meeting to discuss the situation. COBWRA members and the County Commissioner attended the meeting and they listened to the resident’s concerns. The community’s opposition to the SWA’s proposed waste pick up schedule contributed to the SWA not making any changes and we remained at a two-day pick-up schedule.

Ashley: Has your community gone through any rough spots, if so, how did you overcome these?

Jackie: Winston Trails is an aging community, I believe about 25 years old. So, we have had to identify and repair some infrastructure issues. Also, Board members can come and go due to individual life situations. There can at times be turmoil on Boards when it comes to dealing with those changes and trying to keep everyone focused and on the same page. We are all lucky, though, since we all get along and we all work together on the Board. That is one of the most important things in any community; the Board needs to work together for the benefit of the community.

Ashley: How does your community communicate with residents?

Jackie: Paula sends out communications via email to the residents within the community. We also communicate heavily through our Board meetings.

Ashley: What advice would you share with other Board members?

Jackie: When you get on the Board, don’t personalize either the good or the bad you hear from the community. It is not towards you personally. Some residents are very passionate about what is going on, do not personalize anything negative directly. Most of all, work towards the greater good of the community and always keep the common good in mind.

About Jackie Witt:

Jackie was born and raised in Hollywood, Florida. She attended South Broward High School and then went to nursing school at Nova Southeastern University where she earned her bachelor’s degree and her master’s degree in nursing administration. After being a registered nurse for 35 years, Jackie is now retired. After marrying her husband, the pair moved to Alexandria, Virginia and stayed there for 11 years before moving back to Florida in 1978.

Jackie and her husband have been married for 50 years and have two daughters and four grandsons ranging in age from 6 to 17 years old. Jackie and her husband moved into Winston Trails in 2000 and are the original homeowners.

Jackie spends some of her time volunteering at the Palm Beach County Sheriff’s office, as Volunteer Major for administrative special units. She is also proud to be part of the Citizens on Patrol Unit in Winston Trails. She, along with 14 “citizen observers,” are members of unit 73 and regularly patrol the community.

Winston Trails has been with Campbell Property Management since 2001 and is managed by Paula Rappold.

“It is a pleasure to work for a Board of Directors lead by Jackie Witt because the focus is always on what is best for the Winston Trails community. Jackie loves to draw in homeowners using committees, so that those who want to have a voice can and will be heard,” says Paula.

“Meet the Director” is an ongoing series where we recognize an outstanding Director from a community association in South Florida.

by Ashley Dietz Gray, Marketing Director, Campbell Property Management

Tags HOA president in Florida, Meet the Director, Oakmont Village, Winston Trails, Winston Trails Foundation Master 2 Comments

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