Managers Report newsletter

Charging Stations for Electric Vehicles in Condominium Associations

Boards of condominium associations should anticipate that more owners and residents within their communities will be purchasing electric vehicles as they continue to rise in popularity. Several years ago, the Florida Legislature noted that the use of electric vehicles serves an important public interest by conserving and protecting the state’s environmental resources. The Legislature also provided that electric vehicles may provide significant savings to drivers, which continues to be true with the current rise in gas prices. The Legislature decided to encourage the use of electric vehicles. Finding that the participation of condominium associations is essential to these stated goals, the Legislature amended Chapter 718, Florida Statutes (the “Condominium Act” or “Act”) to address electric vehicle charging stations. Electric vehicles are powered by an electric motor that draws from rechargeable storage batteries, fuel cells, or other sources of electrical current. This necessitates the installation of charging stations for these vehicles, which are not nearly as commonplace as gas stations. Boards may reasonably expect to receive more frequent inquiries from residents regarding the installation of charging stations on the property. Anticipating these inquiries and planning ahead will allow the board to avoid the number of logistical issues of these charging stations, as well as potentially give the community an advantage with prospective buyers who compare available amenities when deciding where to purchase.

The association on its own accord may decide to make available, install, or operate an electric vehicle charging station upon the common elements or the association property, rather than wait for individual unit owners to request an installation of the same. The statute specifically provides that the installation, repair, or maintenance of an electric vehicle charging station does not constitute a material alteration or substantial addition to the common elements or association property. This means that this can typically be done via board vote alone. However, there are still a number of determinations the board needs to make, with guidance from association counsel and an electrical engineer or similar expert. For example, the board needs to establish the charges or the manner by which unit owners, residents, or even guests if allowed to use the station will pay for use of the charging station. Further, does the planned location of the charging station(s) impact existing parking spaces? The board should have association counsel review how the spaces are treated in the governing documents and determine whether the board has authority to reassign the same. An electrical engineer should also be involved to determine whether the planned locations, and even the association’s electrical systems, are able to accommodate such an installation.

The association may also wish to leave the installation or operation of electric vehicle charging stations to individual units owners. The statute makes clear that the declaration of condominium may not prohibit or be enforced by the board to prohibit any unit owner from installation a charging station within the boundaries of the unit owner’s limited common element or exclusively designated parking area. But there are numerous requirements a unit owner must following order to do so. Again, the board should work with counsel to determine how the parking spaces are treated in the documents, because this provision does not mean that a unit owner may install a station anywhere outside of their designated limited common element parking space. Although the board cannot prohibit such an installation, the board should consider amending the governing documents or adopting thorough rules regarding the installation, operation, maintenance, repair and other logistical issues that may arise from unit owner installations, such amendments or rules in accordance with the statutes.

For example, there are potential safety issues to consider. The association may deny such a request for an installation if there is proof that it will cause irreparable damage to the association property. The association will need to work with an expert to determine the same. Further, although Chapter 718 allows each owner to install a charging station, the association needs to determine how it may accommodate several requests and whether the property is able to safely accommodate multiple charging stations. The association must ensure that the owner’s charging station complies with all federal, state or local laws and regulations, including with safety requirements, consistent with the applicable building codes or safety standards. The association should also require a certificate of insurance listing the association as an additional insured on the owner’s policy for any claim related to the charging station. Having a detailed application process will allow the association to gather the information it needs to ensure the safety of the condominium prior to the unit owner installation a station.

Additionally, there are the issues surroundings the costs of these electric vehicle charging stations. If an individual unit owner is requesting to install a station on his or her own space, the unit owner is responsible for the costs of installation, operation, maintenance, and repair, including, but not limited to hazard and liability insurance. The electricity must be separately metered or metered by an embedded meter and payable by the unit owner installing such charging station or by or her successor. The association may enforce the payment of the costs installing, operating, maintaining, repairing, or the removal of the station if the owner decides there is no longer a need, via the lien procedures provided for in Section 718.116, Florida Statutes.

Lastly, the board may want to adopt certain reasonable architectural standards that govern the dimensions, placement, or external appearance of the electric vehicle charging station, provided that such standards cannot prohibit the installation of such charging or substantially increase the cost thereof.

Before the association is taken by surprise by a request from an owner or from multiple owners regarding electric vehicle charging stations, the Board should consider the above issues. The association may wish to have counsel put together a written policy about how such issues should be addressed, and an agreement form that owners will be required to sign so that their installation complies with the statute and the governing documents.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

Understanding the Distinction between the Different Association Governing Documents

A recent decision from Florida’s Second District Court of Appeal highlights the importance of understanding the distinction between the different documents that govern the Association, as well as when and how each needs to be amended. Many people use the term “bylaws” as a catch-all term to describe the entire set of documents, but each document serves a different purpose, even if there is some overlap in provisions from time to time.

The case is Joy v. Oaks Club Corporation, — So.3d —- 2022, WL 2541701 (Fla. 2d DCA July 8, 2022), wherein the Joys challenged their Club’s decision to use its bylaw amendment procedure, rather than amending the Declaration, to redefine the membership requirement. Since the Declaration was recorded, it provided that an existing property owner could purchase another property within the community without having to purchase an additional club membership. The Declaration only required that all property owners be members of the Club. The Club amended its Bylaws, and not the Declaration, to provide that an existing property owner who purchases an additional property must now also purchase an additional club membership with each new property acquired in the community. An amendment to the Bylaws required approval by a simple majority of the owners, while an amendment to the Declaration required the approval of a super-majority of the owners, specifically by not less than 75% of the owners. The Joys sued contending that the amendments to the Bylaws were void and only an amendment to the Declaration could change the mandatory club membership requirement. The Court agreed. It explained, in part, that the obligation of an owner to purchase a single club membership was based for thirty years on the Declaration, and therefore the Court was thus hard-pressed to find that the Club could redefine this requirement through a bylaw amendment.

This case serves as a reminder to understand the hierarchy of the Association’s governing documents. At the top of this hierarchy is the Association’s Declaration. Florida case law often describes the Declaration as the Association’s “constitution” as it carries the most legal weight of the Association’s documents. This means that provisions of the Articles of Incorporation, the Bylaws, or the Rules and Regulations cannot contravene an express provision of the Declaration. The Articles of Incorporation create the corporation or the corporate entity responsible for the management and operation of the condominium – in other words, the Association. The Bylaws contain the operating procedures of the Association. This is the document that generally contains meeting procedures, notice requirements, and other operational matters. Finally, the Rules and Regulations, which are essentially the “do’s and don’ts” of the community that govern day-to-day functions of the community. For example, pool rules or gym rules will be found therein.

Moreover, not only can the Articles, the Bylaws, and the Rules and Regulations not contravene an express provision of the Declaration, but Florida case law has also established that these documents cannot contravene a right reasonably inferable from the Declaration. Determining whether an amendment contravenes a right reasonably inferable from the Declaration is tricky and should be determined with the assistance of association counsel.

For example, returning to the case described above, the Court discussed that the Club Declaration required only that all property owners be members, but once membership was obtained, the Declaration contained no limitations on the nature or the scope of the property that may owned. Thus, the Court reasoned that the right to own multiple properties while only being required to purchase one club membership was a right reasonably inferable from the Declaration. This meant that the Bylaw amendment requiring the purchase of additional club memberships for each additional property purchase in the community contravened this right inferable from the Declaration.

Lastly, despite the Declaration’s ultimate place at the top of the document hierarchy, it is important to note that if the Declaration is in conflict with the law, the law prevails in most instances. There are several statutory provisions that expressly defer to the governing documents. Again, working with experienced association counsel will ensure that the documents are properly in line with the law so that such a conflict does not find itself in the Association’s documents.

In addition to understanding the function of each document and their hierarchy in relation to one another, it is important to determine whether each governing document is subject to its own amendatory procedure, which is the case in many communities. Generally, the Declaration may require the highest level of owner vote, such as in the Joy case wherein the Declaration required a super-majority approval and the Bylaws required a simple majority approval. This means that the Club’s decision to amend the Bylaws, even if it did receive a membership approval for the same, was not enough. Some communities have association counsel draft amendments that can simplify the amendatory procedure. For example, the Declaration, Articles of Incorporation, and the By-Laws can be amended to have matching amendatory thresholds, which can be easier to remember and implement. In some cases, the vote is based on the total number of members, and in other cases, the required vote to amend is based on the number of members who actually vote at a meeting where a quorum is established. The latter is generally recommended to combat voter apathy and can be changed with the assistance of association counsel. Lastly, in most communities, the rules and regulations are typically adopted and amended by a vote of the Board alone, assuming the other documents give the Board adequate rulemaking authority. The Board’s rulemaking authority is found in the other three documents, and the Board should verify with counsel when adopting new rules to determine if this is within the scope of their authority.

A higher threshold for amending the Declaration, or a requisite membership approval for amending the Declaration, the Articles, or the Bylaws rather than a Board-made rule, should not deter the Board from properly amending the correct document. Improperly passing a rule or amending a document in the procedurally incorrect fashion can lead the Association to expensive issues and legal liabilities. By working closely with experienced association counsel when amending any of the Association’s governing documents, the Association can ensure that the provisions of its documents are legally enforceable, complimentary to one another, and in the best interest of the community.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

Vetting Contractors and Contracts

If you live in a condominium or cooperative association in Florida, it may seem like your building is in a constant state of repair. Roofing. Painting. Concrete restoration. Pool deck. Pool re-marciting or diamond briting. Asphalt. Pavers. Elevators. Windows. The list goes on and on, and the work goes on and on. With the new statutory structural integrity inspections and reports that are now required, the work will only increase. While all these repairs and maintenance are required and good for the building and its residents, choosing the right contractors to perform these jobs are critical in order to ensure the job is done timely, properly, at a reasonable cost, and with proper warranties as applicable.

How does an association find the right contractor? In today’s market, how does the association find any contractor? What are the steps? The pitfalls? Who do we get references from? This article will assist you with these questions.

References can come from many sources. Neighboring buildings. Your manager. The management company. Your other professionals – accountant, insurance agent, attorney. Your engineer. An association should be able to secure at least three or four qualified contractors from these sources. How many bids do you need? By law, when competitive bids are required, the minimum is two. That is all the statute requires – two bids. Not three, like many people think. But I always suggest you solicit at least three bids for any job over $10,000.00, and for major work, like roof replacement, painting, concrete restoration, etc., six or seven bids are not uncommon.

Major work, like roof replacement, painting and waterproofing, concrete restoration, etc., should have a formal bid package prepared by the association’s engineer in conjunction with the association. The bid package will contain detailed specifications that each bidder is required to comply with, resulting in the “apples to apples” bid comparison every association wants to see. How does the association engage an engineer? See the above paragraph.

The formal bid package will include specifications, timetables for the work, payment provisions, payment approval provisions, insurance requirements, warranty information, performance deadlines, penalties for missing performance deadlines, inspection requirements, who pays for permits, and a host of other information. Generally, there is a matrix where each contractor is required to insert their price for that specific portion of the job. Once all the bids are received, the engineer or association can prepare a matrix showing all the contractors and their prices for each portion of the work. This is the beginning, just the beginning, of the contractor vetting process.

Price is not everything. Price is not the only thing. Generally, a contract should not be awarded based on price alone. While price is certainly an important factor, it is not the only factor.

Availability, supervision, reputation, ongoing other jobs, past performance, complaints on file, warranty, and other factors should be considered. If possible, walk another community where the contractor is doing work. Speak to those board members and residents, if possible, regarding the work, the contractor, problem resolution, supervisor availability, etc. All of this information should be factored into a board’s decision when choosing a contractor.

Of course, do not forget the basics, which will be part of the bid package – licenses and insurance. Always verify licenses and insurance. Let me say that again – always verify licenses and insurance. The association should be an additional insured under the contractor’s insurance policy – not just a certificate holder.

While the above bid package and related information is generally just for major projects as noted above, the theories can be applied just as well to a $5,000 pool heater replacement, a $7,500 sidewalk installation or a $15,000 playground installation. Check references. Verify licenses and insurance. Look at warranties.

One of the most important pieces of advice I can give – do not sign any contract before it has been reviewed by your association counsel. AIA contracts are not written to protect an association – they are written to protect the contractor. One page proposals, with a signature line and small print on the back page, are generally a red flag. Not always, but generally. Usually, a more formal contract that protects the association is required.

My second most important pies of advice regarding contracts – never sign a notice of intent without the notice being reviewed by your association counsel. These notices of intent can bind an association to engage in a contract, payments, etc., before a contract is even produced, reviewed or executed.

Living in south Florida, we have six months of hurricane season. Once a storm hits, contractors from all over the country descend upon Florida looking for work. Many of these are legitimate companies here to help. Just as many are not. When dealing with contactors after a storm or other disaster, the best piece of advice is “Do not lower your standards”. Go through the vetting process. Check references. Verify licenses and insurance. Legitimate companies that want to do business in Florida have licenses and insurance in place before a disaster. Watch out for red flags:

You need to sign the contract today
I can only give you ___% off today.
50% down
We can start work immediately – right now
Just sign the agreement – all payments will come from your insurance company
Any type of pressure tactic

Use your common sense. If a deal is too good to be true, it usually is too good to be true. There are no free lunches. Choose your contactors wisely. Time spent up front doing so will save you thousands, if not tens of thousands of dollars and as much aggravation later.

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

Disputes in Community Associations: Arbitration, Mediation, or Litigation?

Disputes within community associations were originally treated like other civil disputes, requiring litigation when the parties could not agree. The law evolved to now require certain types of “alternate dispute resolutions” for community associations before the parties head to court. Specifically, both the Florida Condominium Act (Chapter 718 of the Florida Statutes) and the Florida Cooperative Act (Chapter 719 of the Florida Statutes) require mandatory arbitration or mediation before the filing of a lawsuit for a number of specific disputes. On the other hand, the Florida Homeowners Association (Chapter 720 of the Florida Statutes) requires a demand for pre-suit mediation prior to the filing of a lawsuit. In making these alternative dispute resolutions mandatory, the Florida legislature explained that its intent was to reduce the crowed court dockets and alleviate the high cost and significant delay often faced by parties in litigation.

But what exactly do arbitration or mediation mean in terms of resolving a dispute? Both are extrajudicial alternatives intended to resolve disputes. Similar to an internal grievance procedure, both are intended to avoid the time-consuming and costly nature of litigation. But unlike an internal procedure, both involve the use of an outside, independent party of the dispute and typically involve the use of legal counsel.

In mediation, the parties to the dispute meet with an independent, trained third party, who seeks to assist the parties in coming to a mutually agreeable solution to the dispute. The mediator does not make a “ruling” or a “decision” but rather attempts to facilitate the parties’ path to a resolution. For example, a mediator may assist both parties in seeing the potential weaknesses in their case, navigate personality conflicts, and remind the parties of the financial reality of litigation if the dispute is not resolved. The negotiated written settlement agreement following mediation is not subject to review by courts. However, if the agreement is breached by one party, typically the other may seek a court order for enforcement of the settlement agreement.

On the other hand, in arbitration, an arbitrator enters an order following the parties’ presentation of their cases. The arbitrator essentially sits as the judge and makes the decision. Like mediation, such a decision is often made more quickly and more economically than in litigation. The prevailing party is entitled to their reasonable attorney’s fees as awarded by the arbitrator. If the losing party wants to “appeal” the arbitrator’s decision, it may file what is called a trial de novo. A trial de novo is basically a new trial, and the case is heard by the judge as if the arbitration never occurred. This is so because although the Florida legislature seeks to encourage the resolution of condominium disputes through mediation or arbitration, the Florida Constitution guarantees the right of access to courts to all, including in regard to community association disputes. The arbitration order can be introduced as evidence in the trial, but recent case law decisions had lessened the weight an arbitrator’s final order might carry with a judge. If a trial de novo is not filed within 30 days of the arbitrator’s final order, the order is final, and may be enforced by a court of law.

In addition, the arbitrator may also refer a dispute to mediation at any time if he or she finds that the parties may best be served by mediating the dispute. The parties may also request that the arbitrator refer the case to mediation. Additionally, although the Florida Condominium Act requires mediation or arbitration for certain disputes, a party may file a motion for emergency relief or temporary injunction depending on the facts and circumstances of the particular case. For an injunction, the motion must show a clear legal right to the relief requested, that irreparable harm or injury exists or will result, that no adequate remedy at law exists, and the relief of injunction would not be adverse to the public interest.

The Florida Condominium Act is specific as to which disputes must first be brought to mediation or arbitration. Section 718.1255, Florida Statutes, defines disputes as any disagreement between two or more parties that involves the authority of the board of directors to either 1) require any owner to take any action, or not to take any action, involving that owner’s unit or the appurtenances thereto, or 2) alter or add to a common area or element. The statute further defines disputes as any disagreement that involves the failure of a governing body, when required either by the Florida Condominium Act or the association documents, to properly conduct elections, give notice of meetings or other actions, properly conduct meetings, or allow inspection of books and records. This means that any of these disputes in a condominium must first go through the arbitration process through the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation (the Division). The section also defines issues not subject to mediation or arbitration, such as title disputes and alleged breaches of fiduciary duty.

Sometimes, controversies will include both matters that are eligible and ineligible for mediation or arbitration. In such a case where a petition involves a mix of both, an arbitrator may determine whether the ineligible matters can be properly separated so that the eligible issues may be arbitrated separately. Further, much like litigation, there must be an actual present and bona fide dispute for arbitration. The Division will not accept petitions that present issues that are moot, abstract, or hypothetical.

Although alternative dispute resolutions for community associations are guided by statutory requirements, a community association’s governing documents may also require mediation or arbitration either as a condition precedent to litigation or as the sole dispute resolution process. Due to the complex procedural nature of dispute resolution and the fact-dependent nature of most disputes, the association should seek guidance from counsel on not only the proper method, but also the one that will resolve the dispute most expeditiously and efficiently.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

2022 Community Association Legislation—What Happened?

After the Surfside tragedy, everyone wanted to know how such a tragedy could happen and what steps could be taken to avoid similar incidents in the future. What caused the collapse? Could it have been avoided? Why were repairs not made? Why did local governments allow repairs to drag on? Why were repairs not made in a timely fashion? Unfortunately, none of these questions can be answered quickly, and proper answers will require years of study and analysis.

The above questions, and attempts to enact legislative reform to address some of these questions, were a hot topic for the Florida legislature this year. Several counties and the Florida Bar convened task forces in the aftermath of the Surfside tragedy. Primary among the suggested legislative changes for multifamily buildings were periodic engineering inspections, reserve studies, and reserve funding mandates. While all agreed generally in regard to these reforms, at the end of the day, the Senate and House could not agree on the reserve funding issue and, as a result, nothing passed. Currently Florida law can allow for owners to opt to fund less than required reserves, or no reserves. Most legislative proposals included mandatory reserve funding of one type or another. The sticking point was how quickly to implement such mandatory reserves, without the option of owners being able to waive such requirements. Whether to implement immediately, effective in 2022, or over the next three or five years, to allow a gradual implementation, is ultimately what led to nothing being passed. Rather than compromise, which seems to be a forgotten word in Tallahassee these days, legislators could not, or refused, to come to an agreement for the benefit of all condominium and cooperative residents in Florida.

These issues are certain to be re-examined next year. As such, your association should begin recognizing what is most likely coming down the pike and preparing the association and its residents now. Most likely the days are gone when owners will have an opportunity to fully waive reserves. I anticipate mandatory reserve funding of some type will be implemented. Whatever version is implemented, the result will be an increase in annual maintenance assessments. Depending on what is implemented and your association’s current reserve funding situation, some owners may be looking at a significant increase in your 2024 assessments (as the laws I am discussing would be passed in 2023, and most likely effective for the 2024 association budget).

The association should be anticipating and working on these items now. For example, some sort of reserve study requirement is most likely coming. Budget for one now. Get proposals now. Have the study done now. Once mandated by statute, demand will go up, availability will go down, and of course prices will go up. We are seeing exactly that scenario now in regard to structural engineers and 40/50-year recertifications.

In regard to reserve funding, take a good look at your reserve schedules. Get updated estimates of repair costs. Factor in inflation when projecting 10 and 20 year replacement items such as painting, roofing, etc. Any effort to increase your 2023 reserve balances will help lessen any blow of 2024 mandated reserves. Explain these issues to your residents now. Many associations are understandably involved with 40/50-year recertification requirements and other life-safety related issues. Obviously these issues need to be addressed immediately and on an expedited basis. But associations and their members should keep their eye on long-term remedial requirements as well. More oversight; more required inspections; more required repairs; and more required reserves. All of these are good things for 40–50-year-old buildings in a saltwater environment in Florida.

The outcome of the 2022 legislative session once again underscores the inherent problem when all community association ideas are placed in only one omnibus bill. Until our legislators acknowledge this problem and start using stand-alone bills for important proposals, there is always the risk that needed reforms will not pass.

Contact your legislators, tell them you welcome these types of reforms, but they need to be addressed as needed, not all under one take it or leave it omnibus bill. Work with your association leaders on the above discussed items. Don’t be surprised by increased annual assessments, special assessments, and other upcoming expenses. They are coming. Prepare now.

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

Should an Association Allow Its Clubhouse, or Other Common Area, to Be Used for Gambling?

While there are certain exceptions, generally, any game of chance is considered gambling. Section 849.08, Florida Statutes, defines gambling as follows:

“Gambling.—Whoever plays or engages in any game at cards, keno, roulette, faro or other game of chance, at any place, by any device whatever, for money or other thing of value, shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.”

The first type of gambling games, which are not subject to criminal penalties, are penny-ante games. Penny-ante games are specified in Section 849.085, Florida Statutes, as “a game or series of games of poker, pinochle, bridge, rummy, canasta, hearts, dominoes, or mah-jongg in which the winnings of any player in a single round, hand, or game do not exceed $10 in value.” Penny-ante games may be played in a dwelling, which is defined to include the common elements or common area of a residential subdivision of which a participant in a penny-ante game is a unit owner.

While penny-ante games are not subject to criminal penalties, the $10 restriction is very limiting and many games of chance, such as poker, exceed this amount. Poker games exceeding this amount would be considered illegal gambling.

In addition to penny-ante games, Bingo games are also not subject to criminal penalties. Pursuant to Section 849.0931(4), Florida Statutes, Bingo is defined as:

“Bingo game” means and refers to the activity, commonly known as “bingo,” in which participants pay a sum of money for the use of one or more bingo cards. When the game commences, numbers are drawn by chance, one by one, and announced. The players cover or mark those numbers on the bingo cards which they have purchased until a player receives a given order of numbers in sequence that has been preannounced for that particular game. This player calls out “bingo” and is declared the winner of a predetermined prize. More than one game may be played upon a bingo card, and numbers called for one game may be used for a succeeding game or games.

While not specifically addressed in Chapter 720 or Chapter 719, the Condominium Statute, Section 718.114, Florida Statutes, provides: “[a] condominium association may conduct bingo games as provided in s. 849.0931.” That being said, Section 849.031, Florida Statutes, recognizes the right of a homeowners’ association, cooperative association and a condominium association to have bingo games on the common areas. Although permitted, there are several limitations on having a bingo game in a community. Just a few of the limitations under this statute include the following:

The jackpot shall not exceed the value of $250 in actual money or its equivalent;
The organization conducting the bingo cannot have bingo games exceeding two days per week;
No more than three (3) jackpots on any one day of play; and
No one under 18 is allowed to play.

There are also specific requirements for the bingo cards and the objects/balls marked by letters and numbers.

Based upon the foregoing, most games of chance are considered illegal gambling and should not be permitted on an association’s common areas. If an association wishes to proceed with allowing penny ante games or bingo games on the common area, it should first consult its attorney to verify that it is complying with the requirements of Section 849.085 and Section 849.0931 of the Florida Statutes.

Elizabeth A. Lanham-Patrie

Shareholder, Becker
Ft. Lauderdale | bio

Absentee Owners and Unoccupied Condominium Units

In condominium associations throughout the state, it is common for there to be seasonal unit owners who leave their units unoccupied during portions of the year. For associations faced with periodically unoccupied units in multifamily condominium buildings, there are distinct legal issues worth considering in advance of problems arising.

Florida’s Condominium Act (the “Act”) does not require absentee unit owners to have their unoccupied units periodically inspected for damage or deterioration. To overcome the absence of a statutory requirement, associations may adopt amendments to their declaration of condominium so that such inspection requirements are enacted to avoid problems originating in unoccupied units going undetected and/or unreported for long periods. Additionally, while the Act authorizes associations to “operate” association-installed hurricane protections to guard against damage to the condominium property, it does not require such protection to be installed. Therefore, it may be prudent to require all unit owners, including but not limited to absentee owners, to install such protection. To incentivize compliance, Section 718.111(11)(j), Florida Statutes provides that the responsibility for damages not paid for by insurance proceeds is shifted from the association to unit owners when such damages result from the unit owners’ failure to comply with the association’s declaration or rules.

The Act provides associations with an irrevocable right of access to enter units when necessary to undertake maintenance of common elements, and as necessary to prevent damage to common elements or to a unit. Associations should ensure that their documents or rules require a working key to all exterior doors and/or that contact information for local persons caring for unoccupied units be provided to the association. It is not recommended for an association to wait until an emergency arises before first contemplating how it will gain access to unoccupied units.

Fortunately, this subject is one that most association law practitioners have addressed in one manner or another. Condominium associations that find themselves concerned about unoccupied units are encouraged to discuss this with legal counsel so that a strategy for dealing with such units may be developed.

Joseph Arena

Senior Attorney, Becker
Ft. Lauderdale | bio

Switching Hats: Can a Lawyer Who Represents an Association also Serve as a Member of the Client’s Board of Directors?

The short answer: there is no express prohibition against this, but it’s complicated and not recommended for either the association or the lawyer. There are several ethical issues that arise due to the lawyer’s duties to the entity as its counsel, fiduciary duties to the entity as a director, and the lawyer’s personal self interest in both roles.

A board member who is also an attorney can be a great asset for a community association board, as she may have the attention to detail, certain knowledge, and communication skills that are useful to serving on the community’s board. Many attorneys do sit on the boards of their communities and are of great service to their communities. However, this does not substitute the need for independent legal advice from an attorney who specializes and is experienced in community association law.

If a lawyer serves as both director and counsel, the lawyer must be extremely careful in examining which hat—lawyer or director—she is wearing during all communications as she navigates between the two roles. This also needs to be clearly communicated to her fellow board members. For example, an attorney-client relationship may unintentionally arise when the entity reasonably believes that the lawyer-director is acting as its counsel in providing legal advice. Or when acting as counsel, she must take every reasonable step to ensure that the board understands that she is representing only the association itself and that she does not represent any of its individual board members, officers, employees, or anyone else.

Even with careful navigation between the two roles, there are a number of issues that may arise. The first, as briefly touched upon, is that conflicts of interest may arise. A lawyer-director who is personally affected by the legal advice she is giving to the board undermines her capacity to provide objective advice.

The second is in determining the scope of the lawyer’s representation. Generally, a client determines the objectives or goals of the representation, and the lawyer must abide by the client’s decisions. Meanwhile, the lawyer typically determines the means, such as the technical and legal tactical issues, to reach those objectives. However, the lawyer should consult with the client as to the means, as required. For the lawyer-director, this may cause some issues. For example, when wearing the “lawyer hat,” she must abide by the decisions of the entity regarding the objectives, even if as a director, she disagrees. She must also use her best judgment in determining whether to follow certain instructions as to the means of representation. This may put her at odds with her fellow board directors, who may urge her otherwise. On the other hand, the lawyer-director cannot retire her best judgment when putting on her “director hat” especially where she may disagree with the board’s instructions as to the means of representation.

Third, certain courts have held that a lawyer-director is held to a higher standard of care than a non-lawyer-director. When she is wearing her “counsel hat,” she is required to provide competent representation. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. This may put the attorney in an unintended position where board members are simultaneously shielded from certain liability. The lawyer-director must remind her fellow board members when she is wearing her “director hat” and not providing legal advice, otherwise she will be held to the level of competence required of lawyers. This is especially true if the lawyer does not specialize in community association law, which reinforces the point that community associations should hire independent counsel specializing in community association law even if a lawyer sits on their board.

A fourth issue concerns confidential information. As the entity’s lawyer, the lawyer is required to maintain certain information confidential and privileged. As a board member, the director will have to make certain disclosures. Again, this would require careful switching of hats to determine where legal advice is protected by the attorney-client privilege and when business-related advice is not. The line is not clear and outside the scope of this article.

Given the complexities and importance of the statutory requirements impacting Florida community associations, it is strongly recommended that associations seek independent legal counsel who will best serve the needs of the community.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

Board Member Tidbits

For this article, I thought I would jump around and discuss various items regarding board members, board meetings and a few association operational issues that keep popping up as questions and issues.

Board member certification.

Let’s start with the board member certification requirement, which applies to condominiums, homeowner associations and cooperative association board members.

Within 90 days after being elected or appointed to the board, the board member must certify in writing to the secretary that he or she has read and understands the governing documents and will faithfully discharge his or her fiduciary responsibility.
In lieu of this certification, a board member may submit certification of satisfactory completion of the education curriculum administered by a division-approved condominium educational provider taken within one (1) year before or 90 days after being elected or appointed.
The certification is valid for as long as the board member continuously serves on the board
Associations must maintain the certificates for five years after the election. In a condominium association, the association must maintain the certificates for five years after the election or for the duration of the board member’s term, whichever is longer.
Failure to either certify in writing to the secretary or submit certification of satisfactory completion of the education curriculum means that the director is suspended from service on the board until he or she complies.
The board may temporarily fill the vacancy during the period of suspension.
Any vacancy created based on a director being suspended may be filled according to law until the end of the period of the suspension or the end of the director’s term of office, whichever occurs first.
Once the director complies with the certification requirements, he or she is back on the board, and the replacement director is no longer on the board.

Basic Board Meeting Questions

Do members have the right to speak at board meetings?

Yes, on agenda items.

Do non-members, such as tenants or guests, have the right to speak at, or even attend, board meetings?

Unless the right is specifically in your governing documents, no. However, the association must apply this uniformly, and sometimes that is not a simple as it sounds. For example, if only one spouse is on the deed, that spouse is the “member”. The other spouse is technically not a “member,” unless your documents specifically provide otherwise. In such a scenario, the member spouse may be allowed to attend and speak, while the non-member spouse may not. If the association does not allow non-members to participate in meetings, that would include spouses who are not on the deed.

Can the association promulgate rules on owners’ participation at board meetings?

Yes, and I strongly encourage them to do so. Rules can cover such things as how long a member may speak on agenda items, how many times a member may speak on one item, directions regarding audio and video recordings so as to not disturb or disrupt the conduct of the meeting, etc.

Can a member discuss items at a board meeting that are not on the agenda?

Without the board’s permission, generally no. Some board have what is referred to as good and welfare, open forum, etc., where members are given the opportunity to address items that are not on the agenda with the board. If the board has such open forums, it is important that all board members be present to give legitimacy to such interactions.

Can the board remove a board member from the board?

No. Only the membership can remove a board member from the board. The board can remove a board member from an officer position at any time at a duly noticed meeting where the item is on the agenda. Board members can always reapportion board officer positions at a duly noticed meeting where the item is on the agenda. There may be an exception if your association members vote directly for the officers of the association, but that is extremely rare. In the vast majority of cases, the board members vote for the board officers.

Basic Reserve Questions

Are condominium and cooperative reserves required to be fully funded?

Yes, unless the membership has properly waived funding of reserves.

Can required reserves be partially waived? For example, can the membership vote to only fund 25 percent, or 50 percent, of the required reserves?

Yes.

Can the board use reserve funds for other than intended purposes? For example, if there is only $50,000 in the roof reserve, the roof needs to be replaced now, and the cost of the roof replacement is $100,000, can the board borrow $50,000 from other reserve items to pay for the roof repairs?

If your reserves are set up utilizing the straight-line reserve method, absolutely not. Only the members can vote to use reserves for other than intended purposes, which must occur at a duly noticed meeting where the item is on the agenda. If your reserves are set up under the pooled method, while you still have individual categories and allocations, all funds in the pool can be used to pay for any reserve item. Pooled reserves can be complicated so an association should confer with its accountant before setting up pooled reserves.

Can the board borrow from the reserves to pay for unanticipated operating expenses or operating deficits?

Absolutely not. This would fall under the same scenario as above, where the reserves are being utilized for other than intended purposes.

Is the association required to give members the option to waive reserves?

No. Whether or not members are given the option to waive reserves is up to the board.

Can the board convert regular (straight-line) reserves into a pooled reserve?

No. Existing straight-line reserves can only be converted into pooled reserves upon a vote of the membership. The board can decide on its own to begin pooling reserves moving forward; in that case, the existing straight-line reserves remain in their straight-line configuration, while future reserves would go into the pool. Generally, when a board is converting to pooled reserves, the membership will vote on whether or not to convert the existing reserves to pooled reserves so there is only one type of reserves.

Howard J. Perl, Esq.

Shareholder, Becker
Fort Lauderdale | bio

The Association’s Responsibility for Wildlife on the Property

As Floridians, we are familiar with various types of wildlife surrounding our neighborhoods. It’s not uncommon to spot feral cats and ducks while walking the dog, or large iguanas out on the golf course. And let’s not forget about the numerous alligators, as well as coyote and black bear sightings. As new communities develop and expand into natural habitats throughout the state, interactions between residents and wildlife are increasingly common. Most of the time, these interactions are not problematic, but dangerous incidents can, and do, occur. The tragic alligator attack of the two-year old child at Disney World comes to mind, as well as the alligator attack of the University of Florida student. In a recent case, a mobile home park resident brought a wrongful death suit against the mobile home park after her husband was bit by fire ants while walking their dog in the park and died a couple of days later. This leads to the question; can an association be held responsible if someone is injured due to wildlife on its property?

As we know, an association is responsible for the operation and maintenance of the common areas. Additionally, landowners have certain duties to keep their properties in safe condition. If a resident or visitor is injured on property as a result of the association’s negligence, the association can be held liable. Generally, premises liability is based on the negligence of a property owner or occupant in allowing invitees or licensees to enter an area on the property, without warning, where the owner or occupant could foresee that such persons could be injured by a dangerous condition on the property that is unknown to the invitee and cannot be discovered through due care. However, does this extend to wildlife on or entering the association property?

When it comes to wild animals in their natural habitat, generally, the property owner (or association in this case) does not have the obligation to warn or protect others from wild animal attacks, unless the animal has been reduced to possession, or the animal is not indigenous to the locality but has been introduced onto the premises. For example, in the case of the University of Florida student mentioned above, the court discussed that alligators are indigenous to Florida. The University, in this case, did not create the dangerous condition, but rather the alligators moved from their natural habitat of Paynes Prairie State Park to the adjoining recreational lake on campus.

Nevertheless, where the association is aware or reasonably should have known of a particular wildlife issue and makes no efforts to reduce the attractants to the community, a court may find the association liable in the event of injury. Associations in areas prone to wildlife visits may consider adopting certain rules and regulations to reduce attractants of wildlife, such as trash procedures that reduce the likelihood that wildlife wanders into the community looking for food.

The association may also consider erecting signs by entrances or areas where wildlife may be encountered, warning residents and visitors to avoid contact. Although year-round occupants may be familiar with their community’s wildlife, guests and temporary workers, such as contractors, may not. The court examining the University of Florida incident focused on the number of signs posted by the recreational lake warning visitors to avoid swimming and warning of the possible presence of alligators. The court concluded that the proximate cause of the injury was that the swimmer ignored clear warning signs. The court did not conclude that the University would have been negligent had there been no warning signs, however, this case shows that the court took into account the due diligence of the University in its analysis.

In the case of the fire ants mentioned above, the court also took note of the due diligence of the mobile home park. For example, the court noted that the park had an exterminator spray insecticide every other month in order to kill ants and staff would treat visible ant mounds. However, the court ultimately concluded that the mobile home park was not liable because they did not bring the fire ants on the property, nor did they harbor, introduce, or reduce the fire ants to possession, but did take action to treat manifestations of ants.

It is noteworthy that courts seem to specifically distinguish where wildlife is found in “artificial structures” or places where they are not normally found, as opposed to their natural habitat, which could extend to artificial structures on association property. Again, liability does require that the landowner know or should know of the unreasonable risk of harm posed by an animal on its premises, and if the landowner cannot expect others to realize the danger or guard against it.

Because each community is different, the association should consult with legal counsel to determine if certain precautions concerning wildlife are warranted for the community. Placing signs or including provisions in the association’s documents prohibiting feeding or interacting with wildlife may be prudent for associations seeing an uptick of wildlife entering or near the property.

Karyan San Martano

Attorney at Law, Becker
Ft. Lauderdale | bio

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