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Online voting system option for your members, those members consenting to vote online will be invited to register and vote using BeckerBALLOT.

Online voting system option for your members, those members consenting to vote online will be invited to register and vote using BeckerBALLOT.

  • Posted: Sep 24, 2021
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Online voting system option for your members, those members consenting to vote online will be invited to register and vote using BeckerBALLOT.

Eligible voters will be invited to activate their account online and vote!

 

The simplicity and security of our software makes BeckerBALLOT the perfect solution for you!

Use the software for board of directors votes, amendment of governing documents, waive reserves and approval of material alterations and more! Your members need to simply log in, cast their votes and be on their way.

 

 

VOTERS

If your association has joined BeckerBALLOT and you are ready to vote ONLINE, you are in the right place!

Your association has provided you with the ability to easily cast your vote and ensure that no matter where you are, you can participate in important association voting.  It’s fast, accurate and secure.  You’ll have the confidence in assuring your vote is counted, all without the necessity of filling out and mailing your paper ballot!

ADMINISTRATORS

BPBALLOT, the original electronic voting software is NOW BeckerBALLOT, a joint partnership between Becker & Poliakoff and SHYFT digital.

We offer an easy-to-use, secure electronic voting software solution that is compliant with state law. We provide the ability for members in condominiums, cooperatives and homeowner associations to cast their votes online.  You will be able to easily and seamlessly facilitate and increase member participation in important votes. All votes stay secure, anonymous and tracked for validity.

Once your Board adopts a Resolution which offers an online voting system for your members, members consenting to vote online may register and vote using BeckerBALLOT.com. Read the full electronic vote process here.

 

 

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Challenge Accepted: Becker & Coworks International Take on Return-To-Work

Challenge Accepted: Becker & Coworks International Take on Return-To-Work

  • Posted: Sep 21, 2021
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Challenge Accepted: Becker & Coworks International Take on Return-To-Work

The post-pandemic return to work is fraught with challenges – from ensuring the physical and mental well-being of employees and the safety of the actual workplace to attracting and retaining an empowered workforce who successfully maintained productivity without coming into the office for an entire year. Becker Shareholder and employment lawyer Jamie Dokovna invited Becker Managing Shareholder Gary C. Rosen and Coworks International Founder & President Shirley Arline to discuss the future of work and how business leaders can help protect both their people and profitability.

“We all need to recognize that we are embarking upon an experiment, and we have to be openminded about the prospect of adjustments in order to do what’s right for our people and our organization,” said Rosen. “It is critical that whatever any organization does , it needs to be organic and natural to that organization.”

A recent survey¹ showed that 70% of all employees would like companies to normalize working from home and include it as part of a work-week that also featured a few traditional 9-5 in-the-office days. In the same survey, 20% of the responders said they’d be happy never coming back to the office.

“There are still quite a few apprehensions about how to manage in a way that allows employees to feel safe and comfortable,” said Arline. “There are genuine fears among employers and employees about potential exposure; the need for flexibility becomes overriding.”

While the EEOC has declared mandatory vaccination policies permissible (with exemptions being made for religious reasons or chronic health issues)², many companies are uncomfortable with that approach, opting instead to offer incentives – cash prizes for those who prove their vaccination, additional paid time off to get vaccinated – and to promote the value of vaccinations through education and anecdotal evidence provided by COVID-19 survivors or families of those who succumbed to the disease.

“We don’t want to lose good employees,” said Rosen. “We want to be responsive and flexible, but, as a business, we need to have a policy in place that people see implemented uniformly.” Arline continued, “Employers are trying to protect employees from contracting COVID and from other employees who do not want to be vaccinated.”

But safety of the workplace is not the only priority for employers.

“There is a lot of concern about the social and psychological adjustment of employees who have been out for quite a while,” said Arline. “We’ve had a significant increase in requests for EAPs to deal with the mental health impact of the pandemic.”

EAPs, employee assistance programs, are work-based intervention options designed to assist employees in resolving personal problems that may be adversely affecting the employee’s performance. EAPs traditionally assist workers with issues like alcohol or substance abuse; however, most now cover a broad range of issues such as child or elder care, relationship challenges, financial or legal problems, wellness matters and traumatic events like workplace violence. Programs are delivered at no cost to employees by stand-alone EAP vendors or providers who are part of comprehensive health insurance plans.³

“At the beginning of the pandemic, we had some employees who experienced acute stress, and I am very thankful that they reached out to our HR department,” said Rosen. “Sometimes small problems, if left unattended, can become larger issues and then migrate to crisis proportion. does its best to provide an outlet for people to speak to a psychologist or mental health professional with no stigma attached.”

In addition to physical and mental health concerns, employers are also facing disruptions in recruiting and retention of employees.

“ has become a big challenge for employers,” said Arline. “Candidates are asking about the COVID protocols in place, setting very specific terms under which they will consider employment with an organization. I’ve gotten complaints from employers about the fact that they are losing control of the recruiting process and it’s very much in the hands of the candidates.”

The 2020 lockdown has also changed the rules of retention, since that year provided employees time to reflect on the direction of their career and review their professional goals. Many have made the decision to choose a completely different field – a risk that most would not have considered pre-pandemic – or leave the workforce altogether. Pundits have predicted a ‘turnover tsunami’ for the end of 2021, and all businesses are evaluating how to avoid losing quality employees by striking the right balance between a flexible workday and a guaranteed work product or service.⁴

“There isn’t a playbook for the pandemic,” said Dokovna. “Nobody is ahead of anyone else; we’re all figuring this out in real time.”

To watch the entire discussion, please click here.

 

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Becker Launches Interdisciplinary Sea Level Rise Advisory Team to Serve Florida’s Coastal Residents

Becker Launches Interdisciplinary Sea Level Rise Advisory Team to Serve Florida’s Coastal Residents

  • Posted: Sep 21, 2021
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Becker Launches Interdisciplinary Sea Level Rise Advisory Team to Serve Florida’s Coastal Residents

As one of the first law firms in Florida to address the legal issues stemming from sea level rise, Becker is excited to announce its interdisciplinary Sea Level Rise Advisory Team which includes experienced and knowledgeable lawyers ready to assist our clients in preparing for the future.

Our multifaceted team is comprised of specialists at the forefront of this emerging area of environmental law. This includes attorneys and government relations professionals across our Land Use & Zoning, Government Law & Lobbying, Community Association, Real Estate, and Construction Law & Litigation practices.

Led by Ellyn Bogdanoff, the team provides a comprehensive range of services to address flooding and other impacts of sea level rise. In 2021, for example, Becker’s Government Law & Lobbying Practice was instrumental in helping to secure the passage of Florida’s “Always Ready” legislation which will provide more than $100 million every year to help Florida communities combat the effects of rising sea levels.

Flooding due to sea level rise is and will continue to be a big challenge, not just for those living on South Florida’s waterfront, but across the state. Local governments are realizing the significant impact of flooding and are combatting sea level rise by creating resiliency task forces and taking action to revise land use planning and zoning requirements and make upgrades to their stormwater infrastructure and sewage systems.

But it’s not only local officials that must have a plan to respond to rising seas, landowners, developers, condominium and homeowner associations, and everyone in between, must also be prepared for the impacts posed by sea level rise, and develop strategies to prepare their properties accordingly.

Becker’s Sea Level Rise Advisory Team is prepared to help clients mitigate damages from sea level rise, evaluate options to prepare for the short and long-term, and develop financially feasible adaptation strategies. To learn more, please visit FloridaRisingSea.com.

 

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Omnibus Bill (SB 630) Brings Changes for Florida Condos, Cooperatives and HOAs

Omnibus Bill (SB 630) Brings Changes for Florida Condos, Cooperatives and HOAs

  • Posted: Sep 09, 2021
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This year’s large community association omnibus bill will likely become law. This bill, which bears an effective date of July 1, 2021, contains changes which will impact condominiums, cooperatives and HOAs. At more than 100 pages, we will discuss only some of those changes in today’s CALL Alert. This bill, along with all the others CALL has been tracking throughout the 2021 Legislative Session, will be summarized in our year-end Legislative Guidebook.

 

Several of the Condominium changes include:

  • If a condominium association’s insurance policy does not provide rights for subrogation against the unit owners in the association, an insurance policy issued to an individual unit owner may not provide rights of subrogation against the condominium association. This will help prevent the rash of unfounded negligence claims against associations we’ve seen filed by at least one insurance company operating in Florida but may unfortunately result in increased premiums if subrogation against the culpable party in a loss is no longer possible.
  • Bids for work to be performed must be maintained for at least 1 year after receipt of the bid. Previously bids had to be maintained from the inception of the association.
  • A renter would have the right to inspect and copy only the declaration of condominium and the association’s bylaws and rules. Previously, a renter was only allowed to inspect and copy the Bylaws and rules.
  • An association may not adopt rules requiring a member to demonstrate any purpose or state any reason for a record inspection.
  • For condominiums with 150 or more units, an association, in lieu of posting copies of certain required documents to a website, may make those documents available through an application that can be downloaded on a mobile device.
  • Condominium associations may extinguish a discriminatory restriction in the governing documents (e.g., a provision which restricts ownership, occupancy or use of real property on the basis of race, color, national origin, religion, gender or disability) by board vote alone.
  • Confirms that board term limits are intended to be prospective with the service start date being on or after July 1, 2018.
  • Transfer fees will be increased to not exceed $150.00 (from the current $100.00 cap) and may be adjusted every 5 years in accordance with the Consumer Price Index (CPI).
    • Petitioners in recall disputes may now choose to either go directly to court with the dispute or to arbitration.
  • Contracts with a service provider that is owned or operated by a board member (or certain relatives with a financial relationship) are no longer prohibited.
  • The board may not prohibit the installation of a natural gas fuel station, and unit owners installing such stations must comply with all federal, state, and local laws.
  • A board may make available, install, or operate an electric vehicle charging station or a natural gas fuel station on the common elements or association property and establish the charges or the manner of payments by the unit owners, residents, or guests who use such stations. The station installation, repair, or maintenance will not constitute a material alteration or substantial addition to the common elements or association property.
  • Labor performed on or materials furnished for the installation of a natural gas fuel station or electric vehicle charging station may not be the basis for filing a lien against the association.
  • A challenge to a plan of termination may be handled via arbitration or mediation of the dispute.
  • This new law would allow the parties in a condominium dispute to now choose either presuit mediation (which has been used in HOA disputes) or arbitration through the Division of Condominiums, Timeshares and Mobile Homes (“Division”).
  • For election and recall disputes, mediation will not be an option, and such disputes must be arbitrated by the Division or filed in court.
  • The board can use emergency powers in response to damage or injury caused by or anticipated in connection with any occurrence, or threat thereof, whether natural, technological, or manmade, in war or in peace, which results or may result in substantial injury or harm to the population or substantial damage to or loss of property. This language was expanded to include emergencies caused by contagion.
  • The board may exercise its emergency powers to conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part by telephone, real-time videoconferencing, or similar real-time electronic or video communication with notice given as is practicable.
  • Such notice may be given in any practicable manner, including publication, radio, US mail, the internet, electronic transmission, public service announcements, and conspicuous posting on the condominium property or association property or any other means the board deems reasonable under the circumstances.
  • Based upon advice of emergency management officials or public health officials, or upon the advice of licensed professionals retained by or otherwise available to the board, determine any portion of the condominium property or association property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety or welfare of such persons.
  • The board may mitigate further damage, injury or contagion, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus or contagion. This section may be used to justify heightened sanitation protocols.
  • The board can contract, on behalf of any unit owner or owners, for items or services which are necessary to prevent further injury, contagion, or damage, including, without limitation, sanitizing the condominium property or association property.
  • The emergency powers are limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the unit owners and the unit owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage, injury, or contagion and make emergency repairs.
  • Most importantly, when it comes to the changes to the emergency powers provisions in 718.1265, F.S., an association may NOT prohibit owners, tenants, guests, agents, or invitees of a unit owner from accessing the unit and common elements and limited common elements appurtenant thereto for if such access is needed to facilitate the sale, lease or other transfer of title to the unit. Presumably this language was included at the urging of the real estate industry because many associations restricted open houses and other in person showings of property during the height of the COVID-19 pandemic as well as in move-ins and move-outs in some cases.
  • Specifies that fines are due 5 days after notice of the approved fine is provided to the unit owner and, if applicable, to any tenant, licensee or invitee of the unit owner. Previously, fines were due 5 days after the date of the Fining Committee meeting at which the fine was approved.
  • Multicondominium associations may adopt consolidated or combined declaration of condominium but cannot merge the condominiums or change the legal descriptions of the condominium parcels, unless accomplished in accordance with law. This change applies to associations existing on July 1, 2021.
  • Expands the Division’s jurisdiction to now investigate complaints related to the maintenance of association records.

Several of the Cooperative changes include:

  • The definition of “Unit” is amended to state that “an interest in a unit is an interest in real property”.
  • The association may not require a member to demonstrate any purpose or state any reason in order to inspect the official records.
  • A board or committee member participating in a meeting via telephone, real-time video conferencing, or similar real-time electronic or video communication counts towards a quorum and such member may vote as if physically present.
  • The Petitioner in a recall dispute may choose to either go directly to court or to pursue arbitration with the Division.
  • Cooperative associations may extinguish a discriminatory restriction in their governing documents by Board vote alone. See the definition of a discriminatory restriction in the Condominium section above.
  • The same changes to the emergency powers language discussed above in Chapter 718 are also set forth in Chapter 719, F.S.

Several of the HOA changes include:

  • The definition of Governing Documents will no longer include Rules and Regulations.
  • In addition to the authorized means of providing notice of a board meeting, the association may also adopt a rule for posting the meeting notice and agenda on the association’s website or an application and must send an electronic notice including the hyperlink to the website or application to members whose e-mail addresses are included in the association’s official records.
  • The association must maintain for at least 1 year after the date of the election, vote, or meeting the ballots, sign-in sheets, voting proxies, and all other papers and electronic records relating to the parcel owners’ voting.
  • Information obtained in a gated community in connection with guests’ visits to parcel owners or community residents are records not accessible to members or parcel owners.
  • Reserves will only be considered mandatory if they are approved by a majority of the total voting interests or if the declaration, articles or bylaws obligate the developer to create reserves.
  • If the budget does not provide for reserve accounts under Section 720.303(6)(d), or the declaration, articles or bylaws do not obligate the developer to create reserves, and the association is responsible for the repair and maintenance of capital improvements that may result in a special assessment if reserves are not provided or are not fully funded, each financial report for the preceding year must contain certain disclosure language in conspicuous type.
  • The Petitioner in a recall dispute may choose to go directly to court or pursue arbitration with the Division.
  • Specifies that fines are due 5 days after notice of the approved fine is provided to the parcel owner and, if applicable, to any tenant, licensee or invitee of the parcel owner.
  • Removes the requirement that notices required by Section 720.306, Florida Statutes, be sent to the address on property appraiser’s website-notices only have to be sent to the mailing addresses found in the official records of the association.
  • Transports over the grandfathering of rental rights which has been in the Condominium Act for many years to the HOA Act. Any governing documents or amendments that prohibit or regulate rental agreements will apply only to owners who acquire title to the parcel after the effective date of the governing document or amendment, or to a parcel owner who consents, individually or through a representative, to the governing document or amendment. Existing owners who vote “no” or don’t vote on the rental restriction will not be governed by same. This restriction, however, does NOT apply to amendments or governing documents which seek to prohibit or regulate rentals for terms of less than six (6) months or to limit parcel rentals to no more than three (3) times per year. It will be important for HOAs with more than 15 parcels (this grandfathering of rental rights does not apply to associations with 15 or fewer parcels) who wish to impose other rental restrictions to do so before July 1 if they wish those restrictions to apply to all members.
  • For purposes of determining the applicability of a rental amendment or rental restriction, a change in ownership does not occur when a parcel owner conveys the parcel to an affiliated entity, when beneficial ownership of the parcel does not change, or when an heir becomes the parcel owner.
  • The Petitioner in an election or recall dispute now has the option to file for arbitration or file in court. These disputes are not eligible for presuit mediation.
  • Clarifies that turnover of control of an HOA will be triggered three months after 90 percent of the parcels in all phase of the community that will ultimately be operated by the homeowners’ association have been conveyed to members other than the developer.
  • HOA boards may extinguish a discriminatory restriction in their governing documents by board vote alone. See the definition of a discriminatory restriction in the Condominium section above.
  • The same changes to the emergency powers language discussed above in Chapters 718 and 719 are also being added to Chapter 720, F.S.

The foregoing are just some of the changes this bill creates for your association operations. Florida’s Legislative Session is scheduled to end on April 30th. Stay tuned for additional CALL Alerts and as promised, our comprehensive Legislative Guidebook.

 

DONNA DIMAGGIO BERGER

Contact: dberger@beckerlawyers.com

Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.

 

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Can Remote Meetings Be Held Now That the State of Emergency Has Expired?

Can Remote Meetings Be Held Now That the State of Emergency Has Expired?

  • Posted: Sep 08, 2021
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Can Remote Meetings Be Held Now That the State of Emergency Has Expired?

The “state of emergency” that had been imposed by Governor DeSantis in light of the COVID-19 pandemic expired on June 26, 2021.  As a result, the “emergency powers” given to condominium, cooperatives, and homeowners’ associations in Sections 718.1265, 719.128, and 720.316, Florida Statutes, respectively, are no longer in effect.  The emergency powers that were in effect during the COVID-19 state of emergency included conducting board meetings and membership meetings with notice given as is practicable, but did not specifically give associations the authority to conduct meetings remotely.  Nevertheless, many associations did hold meetings remotely in an effort to slow the spread of the virus and to protect its residents and employees.  (NOTE:  The emergency powers statutes were amended effective July 1, 2021, and now specifically provide that during a declared state of emergency, the association may conduct board meetings, committee meetings, elections, and membership meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication.)

Now that the state of emergency has expired, what meetings can associations hold remotely, either in whole or in part?

With regard to board meetings, the statutes specifically address the board members’ participation by telephone or videoconferencing, but do not address whether owners may participate remotely or whether the owners can be required to participate remotely.  The statutes do provide that meetings of the board must be “open” to all owners.  If your board wishes to hold remote board meetings, the board can allow owners to also participate remotely in the same manner as the board members by giving the owners the call-in number or videoconference link.  The law is unsettled as to whether a remote only meeting is valid, as some owners may not have the capability or desire to participate remotely.

With regard to owner meetings, the statute governing corporations not-for-profit, Section 617.0721(3), Florida Statutes, provides that owners and proxyholders may participate remotely and can also vote remotely if authorized by the board of directors, and subject to such guidelines and procedures as the board may adopt.  But as with Board meetings, none of the statutes indicate whether “remote only” meetings, which require the owners to participate remotely, are valid. (Note that this type of “remote voting” contemplated by Section 617.0721(3) is different than the electronic/online voting that is permitted by Sections 718.128, 719.129, and 720.317, Florida Statutes).

For owner meetings at which an election will be held, the issue is more difficult.  The Condominium and Cooperative Acts require owners to vote by “secret ballot” and many homeowners’ associations governing documents also have a secret ballot requirement.  In that case, an owner participating remotely would be unable to vote on the election of directors unless the owner voted in advance of the meeting or unless the association had authorized electronic/online voting pursuant to Sections 718.128, 719.129, and 720.317, Florida Statutes).  Further, in condominium and cooperative associations, the “election committee” that opens and counts the election ballots must be physically together, and owners are entitled to observe the ballot counting process in the owners’ “presence”.

Because of these legal issues, a “hybrid” approach where owners are given the option to participate remotely, but are not required to participate remotely, is the best approach.  Some meetings lend themselves to remote participate more than others.  For instance, board meetings and non-election owners’ meetings are the types of meetings that can be managed remotely.  However, if there is an election, there will need to be additional considerations.

Boards should discuss these issues with the association’s attorney so that all of the necessary board authorizations can be prepared and approved by the board.

 

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“The Ins & Outs of Preparing a Condominium Association Budget,”

“The Ins & Outs of Preparing a Condominium Association Budget,”

  • Posted: Aug 27, 2021
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“The Ins & Outs of Preparing a Condominium Association Budget,”

Karyan San Martano

In many ways, the managing and operating of a condominium association is akin to operating a business. A primary similarity is the importance of careful and accurate financial planning and budget preparation. The board of directors of an association has fiduciary duties to its members. By paying close attention to the legal and technical requirements of condominium association budget preparation, the association can better assure its members of a smooth-running fiscal year ahead.

The legal and technical requirements of condominium association budgets can be found in Chapter 718, Florida Statutes (the “Condominium Act”) and Section 61B-22 of the Florida Administrative Code. An association’s bylaws may also contain certain financial requirements to which a board and/or budget committee should pay attention. Although the statutory and code requirements apply to all condominium associations, there is no one-size-fits-all for budget preparation. The intricacies of the budget will differ based on a number of factors, such as the size of the condominium, ongoing and upcoming projects, various maintenance obligations, etc.

The budget will cover one fiscal year, which typically tracks the calendar year. However, the association’s bylaws may indicate a different twelve-month period as its fiscal year. The important part is knowing when the fiscal year begins so that the board can ensure plenty of time for planning. For example, many associations which have a fiscal year that follows the calendar year begin planning their budget in the summer months in order to have a proposed budget by November. An additional time requirement to be aware of is that any meeting at which the proposed budget will be considered requires 14 days statutory notice.

However, your association bylaws may require a longer notice, such as a 30 days’ notice of a budget meeting. If your bylaws require a longer notice (such as 30 days) rather than the statutory 14 days’ notice, you must follow the bylaw notice requirement. The notice must include the date, time, and location of the budget meeting as well as a copy of the proposed budget. The completed notice must also be posted in a conspicuous location on the property at least 48-hours before the meeting. Although the budget meetings must be opened to all members, the board is generally authorized to adopt the budget without a vote of the owners.

As for what goes in the budget, it is divided into two main sections: an operating budget and a reserves budget. Again, similar to a business, an association’s operating budget displays the costs of the day-to-day operations of the association. This means that this section reflects reoccurring monthly and annual expenses. The operating budget may include, for example, expenses for management fees, recreational facilities rent, insurance, and taxes. There are certain items that must be contained in the budget pursuant to Section 61B-22 of the Florida Administrative Code, such as the beginning and ending dates of the period covered by the budget, all estimated common expenses or expenditures of the association including the categories set forth in Section 718.504(21)(c), Florida Statutes, and other items.

The total assessment for each unit type according to the proportion of ownership should also be included in the operating budget, either on a monthly basis or for the period for which assessments will be due (e.g., if the association collects quarterly assessments). A key point to remember about the operating budget is that the money budgeted is not restricted to the particular purpose specified on the adopted budget. If necessary, the association board may use its business judgment to spend money designated for one purpose for other purposes.

The second section of the association’s budget is the reserves budget. The Condominium Act requires the association to maintain reserve accounts for capital expenditures and deferred maintenance. A capital expenditure is the purchase or replacement of an asset whose useful life is greater than one year. Deferred maintenance is any maintenance that is performed less frequently than a year or results in maintaining the useful life of an asset. This is distinguishable from routine maintenance, which needs to be included in the operating section of the budget.

The Condominium Act also specifies that the reserves must include roof replacement, building painting, and pavement resurfacing, regardless of the amount of the maintenance or replacement cost. The association is also obligated to include any other item that has a deferred maintenance expense or replacement cost that exceeds $10,000. Unlike the operating funds which are not restricted to a particular purpose, reserve funds must be used for their intended purpose, unless a majority vote of the members is obtained to use the funds for other purposes. This means that the board cannot use reserve funds designated for one purpose to cover an unexpected expense without an approval vote.

Although as stated above, a board generally has the authority to adopt the budget without a vote of the membership, the Condominium Act does provide the members with two exceptions. First, the members can vote to waive reserves or partially fund reserves. The board can put the reserves question up to a vote if it so chooses. If no vote to waive or partially fund reserves is taken or not enough members vote to do so, the board must adopt the budget with fully funded reserves.

The second time at which a membership’s vote may be taken is if the board adopts an annual budget which requires assessments exceeding 115 percent of the assessment. At least 10 percent of the members must submit a written request for a special meeting of the owners to consider a substitute budget within 60 days after the adoption of the annual budget. A proper meeting notice must be sent out, and a membership meeting will be held. If there is not a quorum present at the meeting, or if the substitute budget is not adopted, the previously adopted annual budget remains in effect.

The ins and outs of preparing a condominium association budget can be complex, and association counsel should be consulted when needed. The board should begin early to assess the current financial picture of the community as well as its long-term financial needs and goals.

To read the original article, please click here.

Karyan San Martano is a member of Becker’s Community Association practice and regularly provides legal counseling to the officers and directors, as well as the property manager, on the operation of condominiums, cooperatives, and homeowners associations. To learn more about Karyan, please click here.

 

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Budget. Reserves. Insurance. Collections. How your community association addresses these will determine its financial health and well-being for years to come.

Budget. Reserves. Insurance. Collections. How your community association addresses these will determine its financial health and well-being for years to come.

  • Posted: Aug 27, 2021
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Budget. Reserves. Insurance. Collections. How your community association addresses these will determine its financial health and well-being for years to come.

by Becker / Lilliana M. Farinas-Sabogal

To ensure the financial well-being of the association, boards and managers should focus on at least four factors in the association: budget, reserves, insurance, and collection practices. This article will take a brief look at each of these, but this is not a finite list. It is recommended that you consult with your association attorney and accounting professionals to ensure you are doing all that you can to address these and any other financial facets of the association in the best way possible for your community.

 

Budgets
Without sufficient funds, the association cannot carry out all the duties it is required to undertake pursuant to the Florida Statutes or its governing documents. The association obtains these funds from its members. Unfortunately, many associations tend to try to keep the budgets as lean as possible to keep the assessments as low as possible. While no one likes to pay high maintenance fees if that can be helped, no one is served well by an association maintaining an artificially low budget to keep the monthly assessments low either.

The budget process should be an honest evaluation of the known and expected expenses the association will have in the coming year, and the ultimately adopted budget should reflect as much. A budget committee can be formed to help the board with the budgeting process. The Florida Condominium Act requires the proposed annual budget of estimated revenues and expenses to be detailed and to show the amounts budgeted by accounts and expense classifications.

Rather than minimizing anticipated expenses in the hopes they won’t be needed after all or creating a budget on an expectation that certain expenses may be negotiated for a lower price in the future, the association should budget on what things are actually expected to cost. Thereafter, if the lower price is negotiated, the budget can be amended downward. Most owners will agree that an amendment to lower the budget is much more palatable than a surprise special assessment because the anticipated expense did not go down as previously hoped.

Properly budgeting the association is the first step in securing the financial well-being of the association.

 

Reserves
The next step in ensuring the financial well-being of the association is to ensure the monies necessary will be available when expensive, but expected, repairs and maintenance are needed. This is the concept of reserve funding. Florida community association law requires associations to establish and collect “reserves” as part of their annual budgets. This means that an association must create a separate budget that will ensure it collects enough money every year so that when the estimated useful life of the component is expired, the association will have saved the amounts necessary to replace the component without the need for a special assessment.

For example, condominium associations are required by law to collect reserve amounts for the roof, building painting, and pavement resurfacing, regardless of the amount of the replacement costs of these and for any item for which replacement or deferred maintenance will exceed $10,000. The monies in these reserve accounts must be used for the purposes they were collected unless the owners vote to approve their use for alternative purposes.

While associations must include full funding of statutory reserve accounts in each year’s budget, the statutes allow the owners to vote to waive full funding of reserves. In such a vote, or in a vote to use reserve monies for other purposes, the statutes require warning language to be printed on the voting documents to advise owners that voting to use reserve money for another purpose or waiving reserves altogether may lead to special assessments in the future.

Reserve funding should be part of the budgeting process. Maintaining proper reserves ensures the association’s ability to handle its expected needs effortlessly by saving for this over time.

 

Insurance
In the case of the association’s financial well-being, two kinds of insurance are important. The most obvious may be the property and/or liability coverage that every association should have to cover damage to property or persons due to casualty or other unanticipated events. This kind of insurance is extremely important because, besides the fact that insurance is required by law or the association’s governing documents, an association can suffer untold damage that could create substantial financial strain on its members if they must pay for the repairs or damages out of pocket because the association did not carry the proper insurance.

In addition, however, it is also very important to remember that among the numerous provisions in the Florida Condominium Act and the Florida Homeowners Association Act, there is a requirement that the association carry fidelity bonding/insurance. For example, Florida Statute §718.111(11)(h) states:

  • The association shall maintain insurance or fidelity bonding of all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. As used in this paragraph, the term “persons who control or disburse funds of the association” includes, but is not limited to, those individuals authorized to sign checks on behalf of the association, and the president, secretary, and treasurer of the association. The association shall bear the cost of any such bonding.

These fidelity policies help protect the association against the financial loss in cases of defalcation of association funds.

 

Collection Practices
The association should have fair, but effective, collection practices and policies in place. While associations often feel the need to give some owners time to catch up with payments, or delay “sending the file to the attorney” to “help out” the owner, this can create a number of unanticipated problems for the association’s finances. First, an uneven application of “giving an owner time” can lead to potential defenses to legal action by those who were not “given time.” Second, many boards woefully underestimate exactly how long collections and foreclosure processes can take from start to finish.

Prior to the 2021 legislative session, the statutes already required the association give notice to owners far in advance of the association filing a claim of lien and then again waiting a long time before proceeding to filing a complaint for foreclosure of the claim of lien. The 2021 statutory changes have further expanded the timelines. Now, associations must give an owner a 30-day notice before even sending the file to the association attorney for collections. Once the attorney receives the file, it must give the owner 45 days’ notice of the association’s intent to file a claim of lien for delinquent assessments.

Thereafter, if the owner still has not paid the delinquent amounts, another 45-day notice must be sent to the owner advising of the association’s intent to foreclose the lien, prior to filing the complaint to foreclose. All told, a condominium association, for example, would have to wait at least 120 days after it decided to send the file to the attorney for collections before it would be able to even just file a complaint to foreclose a claim of lien for delinquent assessments.

Associations should consult with their legal and accounting professionals to ensure they have and consistently implement a collections policy to rein in delinquencies and send out the appropriate notices to owners as soon as possible to avoid even longer and more drawn-out collections of needed funds.

Again, this is not a finite list of considerations an association should take into account related to the association’s financial well-being. However, these issues do form the base for the association’s economy and should be top of mind for boards and managers.

 

Lilliana Farinas-Sabogal is a Board Certified Specialist in Condominium and Planned Development Law and a shareholder in Becker’s Community Association and Business Litigation practice groups. In addition to her experience assisting community associations with day-to-day management and operation of governing their communities, she advises Boards of Directors, unit owners, and community association managers on how best to resolve their contractual and transactional disputes and issues. To learn more about Lilliana, please click here.

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Issues to Consider Prior to Installing Security Cameras on the Common Areas – Part I

Issues to Consider Prior to Installing Security Cameras on the Common Areas – Part I

  • Posted: Aug 12, 2021
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Issues to Consider Prior to Installing Security Cameras on the Common Areas – Part I

BY 

 

Many associations now install security cameras on the common areas to guarantee video evidence of any intentional vandalism or negligent actions which result in damage to the common areas, such as a vehicle running into the gate of a gated community. Some association want to install  security cameras as a way of deterring criminal acts or violations of the governing documents.

Florida law does not prohibit video surveillance of the common areas. However, both State and Federal laws prohibit audio cameras in certain circumstances.

Florida law makes it illegal to intentionally intercept oral communications through the use of a device if one does not have the prior consent of all parties. This is commonly referred to as wiretapping.  Florida’s wiretapping law is a “two-party consent” law which makes it a crime to intercept or record a “wire, oral, or electronic communication” unless all parties to the communication consent.

However, there is an exception for in-person communications when the parties do not have a reasonable expectation of privacy in the conversation, such as when they are engaged in conversation in a public place where they might reasonably be overheard.  Arguably, this exception applies to the security cameras installed on the common areas. However, the best and safest approach would be to only install security cameras with video and without audio.

Further, while video security cameras are not prohibited, such video security cameras should be pointed in the direction of the common areas and should avoid individual units or lots. Section 810.14, Florida Statutes, prohibits anyone from looking into a person’s house, structure, or conveyance or from looking at a person’s intimate areas that are protected by clothing from the public view. This is referred to a video voyeurism and is a criminal offense. Florida’s Video Voyeurism law is not violated if the video camera is

  1. recording the non-private common areas,
  2. not recording inside any dwelling/unit or even a motor vehicle, and
  3. not recording in portions of the common areas where a person has a reasonable expectation of privacy or might be expected to be in a state of undress (bathrooms, locker rooms, etc.).

 

Elizabeth “Beth” A. Lanham-Patrie

Elizabeth
Elizabeth “Beth” A. Lanham-Patrie’shas been practicing law since 1993, and she has focused on representing community associations since June of 2001. Beth provides a variety of legal services to condominium, homeowner, and cooperative associations and is a transactional attorney with extensive experience drafting and amending governing document, and preparing and reviewing contracts. Beth is also involved in resolving disputes between associations and owners. Ms. Lanham-Patrie is also one of only 190 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.
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Legislative Changes on the Horizon by Becker

Legislative Changes on the Horizon by Becker

  • Posted: Jul 14, 2021
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The tragic Champlain Towers South collapse has resulted in an outpouring of support worldwide, while also raising safety concerns among those who reside in community associations in Florida.

Becker’s Community Association Law team hears from clients daily seeking advice on how to assess the structural integrity of their building. The firm has always advised that individual building evaluations can only be addressed with the involvement of a qualified engineer. Separately, clients request guidance on legal steps to help their association more easily navigate these complicated issues. It is apparent that additional resources are needed to help safeguard the significant percentage of Floridians living in communities.

For this reason, the Florida Bar has appointed the Condominium Law and Policy Life Safety Task Force. This group will serve as a resource to the Governor and Legislature as they review all aspects of Florida condominium law, development, association operations, and maintenance to determine and recommend if legislative and or regulatory changes should be enacted. The task force consists of eight members, including Becker Shareholder Joseph E. Adams. Joe currently serves as the Co-Chair of the Florida Bar’s Condominium and Planned Development Committee, and is a former Chair of the Florida Condominium Council appointed by the Florida Legislature.

The Condominium Law and Policy Life Safety Task Force will discuss possible initiatives such as more frequent and statewide mandatory structural certifications, reserve funding mandates, removing hurdles to a board’s ability to assess and borrow for necessary repairs, as well as exploring the feasibility of a government-backed low interest loan program.

Becker’s Community Association Law Team will continue to monitor these developments as they evolve and will share with you as soon as information becomes available.

 

Donna DiMaggio Berger, Joseph E. Adams, Kenneth S. Direktor | 07.09.2021
Perspective Type – Client Advisory