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There has been a lot of talk lately about the 40 Year Recertification of Buildings in Florida

There has been a lot of talk lately about the 40 Year Recertification of Buildings in Florida

  • Posted: Jun 29, 2021
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There has been a lot of talk lately about the 40 Year Recertification of Buildings in Florida

The truth be told the law that requires recertifications after 40 years and then again every 10 years after that is not a state law. or Miami/Dade County and Broward County law.

The law was first put in place by Miami Dade county in 2001 with Broward County essentially copying the Miami/Dade law in 2006.

The process is primarily a creature of Miami-Dade and Broward counties. It’s an inspection intended to ensure buildings are structurally and mechanically safe and intact as they age.

It requires an engineer to do a study of the building based on its structure, electrical, plumbing, and so on, the study is going to tell, what’s wrong with the building. In south Florida that often means issues with concrete and other structural systems. Living in paradise might be great for people but, sun, wind, salt air, and hurricanes takes a toll on buildings. Regular maintenance painting, waterproofing, and other repairs can slow the toll but not eliminate it.

To learn more, check out https://www.broward.org/CodeAppeals/Documents/40YBSI-INFO-Rev.6-15.pdf

 

Should Emails Between Board Members & Managers Be Considered Official Records Subject to Member Inspection?

Should Emails Between Board Members & Managers Be Considered Official Records Subject to Member Inspection?

  • Posted: Jun 28, 2021
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Should Emails Between Board Members & Managers Be Considered Official Records Subject to Member Inspection?

 

In today’s instant world, email allows us to express our thoughts anytime, anywhere. So often, emails serve as a substitute for making phone calls. If a phone call is made from a board member to a manager, absent a deposition of either party or a

contemporaneous note documenting the conversation, the content of the communication remains private. But, if the board member sends an email rather than calling the manager, that email is considered a written record of the association and is required to be produced as a part of a member’s official record request, with limited exception as discussed below.

 

With the sheer volume of emails received by a manager from owners, board members, purchasers, contractors, and lawyers, etc., there is no practical method of separating the emails which must remain confidential. This includes emails with respect to attorney-client privileged matters, personnel matters, information obtained in connection with a sale or lease, social security numbers, and medical information, etc., and separating these emails cannot occur without the manager or hired professional spending hours and hours and hours preparing such records for a member’s requested official record inspection primarily at the association’s expense. Moreover, if an outside professional is needed to prepare the emails for inspection, then the association will not be able to recoup the expenditure. While a condominium association cannot charge any amount to prepare for the inspection, a homeowners’ association is limited to $20.00 per hour for administrative time expended to retrieve requested records. Clearly, this needs a legislative remedy!

 

Generally speaking, for an association’s needs to be met, there must be solid communication between the board and the manager. However, requiring all but privileged and confidential emails to be official records subject to membership inspection stifles that free flow of communication. That said, it is understandable that some emails should be subject to a member’s inspection request, such as with regards to a bid package or contract.

 

More often than not, the emails to and from the manager are actually the property of the management company by whom the manager is employed. Absent discovery that takes place during litigation, typically a company’s emails are the private property of the company. A shareholder of General Mills’ stock cannot demand to see the president’s emails to its manager, so why should the community association president’s email to the manager be required to be produced? After all, overwhelmingly, community associations are “not-for-profit” corporations. At the end of the day, the need for transparency needs to be balanced against the practicality and costs of producing the emails.

 

There is limited guidance from the State of Florida Office of the Attorney General and the Division of Florida Condominiums, Timeshares, and Mobile Homes regarding the production of such emails. Let’s take a look at the limited guidance we do have.

 

On March 6, 2002, the then-Chief Assistant General Counsel of the Department of Business and Professional Regulation (“DBPR”) issued an opinion that “[c]ondominium owners do have the right to inspect e-mail correspondences between the board of directors and the property manager as long as the correspondence is related to the operation of the association and does not fall within the… statutorily protected exceptions… [The DBPR does not have] regulations expressly requiring archiving e-mails, but… if the e-mail correspondence relates to the operation of the association property, it is required to be maintained by the association, whether on paper or electronically, under Chapter 718, Florida Statutes.”

 

In Humphrey v. Carriage Park Condominium Association, Inc., Arb. Case No. 2008-04-0230 (Final Order / Campbell / March 30, 2009), an arbitrator of the Division of Florida Condominiums, Timeshares, and Mobile Homes held that “…e-mails… existing… on the personal computers of individual directors… are not official records of the association… Even if directors communicate among themselves by e-mail strings or chains about the operation of the association, the status of the electronic communication on their personal computer would not change. Similarly, an e-mail to an individual director or to all directors as a group, addressed only to their personal computers, is not written communication to the association.” The arbitrator reasoned that “[t]his must be so because there is no obligation to turn on [the] personal computer with any regularity, or to open and read emails before deleting them.”

 

In Harbage v. Covered Bridge Condominium Association, Inc., Arb. Case No. 19-03-6413 (Emails Are Written Records of Association Order Re-Framing Affirmative Defenses / Simms / January 2, 2020), an owner challenged an association’s failure to provide records requested pursuant to §718.111(12), Florida Statutes. The owner requested to inspect emails between the association and its property manager from 2017–2019. The association refused to provide the records, arguing that the emails were not written records subject to disclosure nor were they written records that are printed in the ordinary course of business. The arbitrator in the case dismissed the association’s argument that the emails were not written records, citing Black’s Law Dictionary, 11th Edition (2019), which explicitly includes emails in the definition of a “writing.” Additionally, the arbitrator pointed to the fact that emails are accepted in litigation as records of regularly conducted business activity pursuant to §90.803(6)(a), Florida Statutes, to dismiss the association’s claim that the emails are not subject to inspection because they are not printed in the ordinary course of business. The arbitrator held that the association’s position was “untenable on both counts,” finding that “emails are a written record subject to disclosure to unit owners.”

 

Simply stated, if one were to rely on the guidance cited herein, then emails solely between board members, even a board majority, are not part of the official records, but emails between a board member(s) and the manager are part of the official records and subject to member inspection unless containing information that is otherwise privileged or confidential. All other emails not protected by privilege or other duty of confidentiality are also subject to member inspection.

 

Where does it end? What about text messages and WhatsApp? Will they, too, one day be subject to inspection? Why one without the other? Better still, if text messages are not subject to member inspection, why should emails be subject to inspection? If emails remain subject to inspection, should not phone calls between board members and managers be statutorily required to be recorded? Why not? Because such a requirement is absurd.

 

In addition, what is missing from today’s legislation are laws protecting the free flow of communication between board members and the manager. Also patently missing from today’s legislation is the ability of the association to require the member requesting the record inspection to prepay for the actual time and cost necessary to prepare the records for inspection.

 

So, while it may make sense for certain vendor emails to remain as records of the association subject to member inspection, it is this author’s opinion that emails between the board and the association’s manager should remain private property of the sender and recipient, most especially if the manager’s computer is provided by the management company and not the association. However, if emails between board members and managers are going to remain as records which must be produced, absent privilege and confidentiality requirements, then at a minimum the association should at least be allowed to fully recover its expenses incurred in the record inspection. Perhaps a present or future Florida legislator will sponsor a long overdue bill to provide the association the lawful right to do so.  

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“Why are the light bulbs in my fountain blowing out?”  By: Allstate Resource Management

“Why are the light bulbs in my fountain blowing out?” By: Allstate Resource Management

  • Posted: Jun 28, 2021
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“Why are the light bulbs in my fountain blowing out?”

By: Allstate Resource Management

Fountains are a great way to add visual appeal to the landscape and the stirring water is relaxing and tranquil to hear. In addition to their aesthetic qualities, fountains also add a great deal of oxygen into the pond as the tiny droplets make contact with the air and fall back into the pond. But do pond water fountains provide enough aeration? Similar to choosing an aeration system, determining if a fountain is right for your pond will depend on the depth, shape, and size.

Subsurface aeration, like the Pond Aeration Systems, are recommended for deeper ponds to provide complete circulation. For these units, the air is pushed through diffuser plates positioned at the bottom of the pond. As the air bubbles rise, oxygenated water from the surface moves to the bottom, creating a healthy aerobic pond ecosystem.

Allstate Resource Management can add beauty and function to your waterways. Our experts will design the ideal fountain or aeration system for your lake or pond. Floating fountains with decorative spray patterns help to beautify highly visible waterways while assisting nature with many biological benefits. Increased dissolved oxygen levels help to sustain fish populations, assist in controlling undesirable bacteria, and improve the overall health of a waterway system. Bottom diffuser aeration systems help to speed the decomposition of organic sediments, improve circulation, and reduce the potential for fish kills in a water-body.

 

We are often asked, “Why do the fountain bulbs burn out with such frequency?”

The answer may be easier to explain by comparing a fountain that is a few years old with an automobile that has been driven for 100,000 miles.  If you put new tires that are rated for 50,000 miles on an older car which has worn shock absorbers, soft springs, and is out of alignment, the tires may only last for 25,000 miles.

A similar set of circumstances that occur after a fountain has been in operation for a few years reduce the life of a new bulb in the same manner.  The copper inside the power cables, control panel components (circuit breakers, contactors), wire connections, the light sockets that have become corroded from moisture, no longer conduct a consistent voltage to the bulb.  As a result, a bulb that would typically last 3 years under ideal or “new” circumstances may afford only a year of life.

Fountains are often taken for granted and become just part of the horizon, rather than something that is used on a daily basis like your car. These fountains are in operation an average of 18 hours a day, 7 days a week, with the lights operating about a third of that time.  Accelerating the deterioration process is the fact that they are submerged underwater 24/7, and exposed to the sun’s ultraviolet rays everyday.

Replacing the bulbs as well as performing scheduled maintenance go a long way with upkeeping an older fountain.

Download Our Company Brochure

Allstate Resource Management

6900 SW 21 Ct. Building 9

Davie, Florida 33317

954-382-9766

 

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Considering a DIY construction project this summer, make sure to check with Aruba Permit Services first!

Considering a DIY construction project this summer, make sure to check with Aruba Permit Services first!

  • Posted: Jun 08, 2021
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If you are considering a DIY construction project this summer, make sure to check with Aruba Permit Services first to see if a permit is required! We are your one stop shop for all your permit needs! 🏠✅

Give us a call at 📞(954) 786-7292 or visit our website www.aruba-services.com to learn more!

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The New Order:  Broward County Emergency Order 21-01

The New Order:  Broward County Emergency Order 21-01

  • Posted: Apr 23, 2021
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Since March 2020, Florida’s Governor has issued a series of Emergency Orders designed to curb the spread of COVID-19, including Emergency Orders prohibiting certain
establishments from operating and imposing regulations on those establishments that were allowed to operate;

Read the New Order: 
Broward County Emergency Order 21-01

 

 

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Vaccination ID’s  To Require Or Not To Require, That Is The Question by KBR Legal

Vaccination ID’s To Require Or Not To Require, That Is The Question by KBR Legal

  • Posted: Apr 07, 2021
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Vaccination ID’s

To Require Or Not To Require, That Is The Question

 

Florida’s community association board members are wrestling with many amenity re-opening decisions these days. One such decision is whether or not to open the community clubhouse including the card rooms, bingo, and even off-Broadway like shows. As a part of that decision making process, board members may be considering requiring proof of vaccination as a pre-requisite to such use.

 

While ultimately a decision within the business judgment of the board, requiring proof of vaccination prior to allowing use of an association amenity is not recommended. Do you remember the ol’ adage, “no good deed goes unpunished?” Well, requiring proof of vaccination from the members prior to allowing use of the clubhouse, no matter how well intended, could likely lead to significant and costly problems for the association who fails to heed the warnings set out in this article.

 

When acquiring medical information of members, the board’s duty, pursuant to relevant law, is to keep such acquired medical information confidential. Requiring proof of vaccination to use amenities will no doubt lead to a significant breach of that duty.

 

Another reason not to require proof of vaccination is that doing so will lead to creating two classes of members. The vaccinated members who are allowed to use the amenities and the unvaccinated members who are not allowed to use the amenities. Yet, all members pay for access to use the amenities in proportion to their assessment obligation. Therefore, this practice could expose the association to adverse litigation from the upset unvaccinated members.

 

If the aforementioned two reasons are not sufficient to dissuade you, then consider this: A member may choose not to be vaccinated for religious reasons. In this situation, by requiring proof of vaccination the association will be exposing itself to a claim of religious discrimination.

 

If the association opens an amenity, then the amenity should be available to all members for use without consideration of vaccination. If that is a concern, then perhaps waiting a short while longer to open the clubhouse or other amenity makes the most sense. Remember, too, that when you do re-open to adhere to CDC protocols as may be appropriate for your community such as mask wearing, social distancing, and sanitizing. As a part of the re-opening procedure, please consult with your association’s attorney regarding the do’s and don’ts.

 

 

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Board Member Mistakes: How to Avoid Them

Board Member Mistakes: How to Avoid Them

  • Posted: Mar 30, 2021
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Board Member Mistakes: How to Avoid Them

Community association boards are bound to face many difficult decisions in the course of their work. Conflicts between individual owners and the board, financial hardships, unexpected disasters: there are many points where decisions need to be made, and a good board want to make choices that will benefit the entire community, not just a few owners or influential board members. When an HOA board gets it wrong, it can take time and hard work to build back trust and community commitment.

Here are a few examples of mistakes that community association boards can make, and some tips on how to avoid them in your board.

1. Inaction on important issues

Whether it’s refusing to take action against a board member who committed a wrong, or ignoring a troubling budget issue on the horizon, it’s never a good idea for a board to put off taking action. Serious issues won’t just resolve themselves, and odds are that the board will find itself dealing with the same issue in the future. It might also snowball into a worse problem.

Not only does inaction risk a larger problem down the road, it sets a bad precedent for community members and future board members. To avoid this mistake:

  • Recognize issues that are serious or might become serious.
  • Don’t be afraid to take action against any owner or board member if it’s really necessary, no matter how important or vocal they are.
  • If the board can’t come to an agreement about a difficult decision, don’t just abandon it. Call in outside experts and stick with it until something is done.

2. Making policy exceptions for just one or two owners

if your board makes a hasty decision that benefits just one or two community members, it could come back to hurt the entire association in the future. Not only can those decisions be called into question by new boards in the future, they may often be made without proper documentation, budget changes, or policy changes.

While you might genuinely want to help a community member who’s in a tough spot, you need to take a step back and look at what is best for the association as a whole. In the example cited above, waiving fees for members who were hit by a natural disaster caused a budget shortfall for the HOA, and created a tangle of legal and policy issues for a new board. To avoid this mistake:

  • Consider any individual’s request in the context of the association as a whole.
  • Look at existing policies for ways to help them that don’t require special treatment.
  • If you do decide to change policies or make an exception, definitely be sure to document everything in meeting minutes and memos so that future boards are less likely to retaliate.

3. Being “penny wise and pound foolish”

Many community association board mistakes revolve around budgeting, a challenging issue for any board. It can be very tempting to defer maintenance, make inexpensive choices when having work done, or make other decisions intended to reduce expenses. But putting off maintenance now can lead to larger, more costly issues down the line. Doing “band-aid” repairs or maintenance rather than investing in upgrades can also end up costing more over time.

To make good financial choices while staying within the association’s budget:

  • Look at the long-term impact of any maintenance issue that you want to delay – what will it cost if the system breaks in a few months?
  • If you’re considering a “band-aid” type of repair, price out the cost of several such repairs compared to the cost of doing a full repair or replacement.
  • Consider increasing assessments or implementing a special assessment to make necessary repairs and perform maintenance.

To avoid these and other community association board mistakes, consider using a property management company who can improve board decision-making and communication

 

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HOA Income Statements

HOA Income Statements

  • Posted: Mar 30, 2021
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HOA Income Statements

Unlike a balance sheet which shows a quick snapshot of HOA finances at a certain point, the income statement shows financial information over a period of time. Usually, the period of time is the rate at which you prepare your financial documents whether it be monthly, quarterly, or annually.

The income statement is considered the most important document within the financial statement because it shows the financial direction, whether that be positive or negative, of the community association.

 

What Information Should Be Included

There are four items that should be included in an income statement:

  1. Gross profit
  2. Operational expenses
  3. Gains and losses unrelated to operational costs
  4. Net income

Gross profit is all the money that was made over the time period. If you submit financial documents monthly, it should be all the funds raised within that month. That should include any dues, fees, charges, or donations collected.

Operational expenses would be regular fees such as property maintenance, pool cleaning, landscaping, etc. Anything that is a recurring charge necessary to keep the community up and running.

All other one-time expenses would fall under the Gains and Losses category. Because the income statement shows finances over a certain period of time, any extra expenses need to be reported. If the community playground needed new mulch in March, that expense should appear in that month’s income statement, even if it means the association did not make as much money in March on paper.

Net income is the result of taking gross profit and subtracting all expenses for the period. This is the magic number that the entire report is based on. If your report comes out showing a positive net income, then your association did well and you can put some money in the reserves. If your net profit came out negative, then you should take a deeper look into your finances and see where improvements can be made.

 

Be as Detailed as Possible

All categories should be broken down to be as detailed as possible. For example, gross profit should be broken down between dues, fees, and any other source of income for that time period. Operational expenses should be broken down into landscaping, pool cleaning, etc. The more detail included in any financial document, the more insight it will give to the association board of directors leading to better decision making and financial planning.

 

Ask the Experts

If you are still unsure about how to create a proper income statement, contact the professionals at CSM. We have years of experience working with HOAs from around the United States. With a wide variety of services, our goal is to give community associations all the tools and technology they need to be financially successful, while at the same time still allowing them to remain independent.

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Slow Your Roll: How to Address Speeding Issues in Your Association

Slow Your Roll: How to Address Speeding Issues in Your Association

  • Posted: Mar 22, 2021
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Speeding is a big problem for many community associations — a problem that is not always easily addressed or corrected. How can your board slow the speed of traffic in your community?

by Jennifer Horan

If your association does not currently have traffic rules, you may be able to rely on a nuisance provision in your Declaration. Alternatively, if your board has the authority to adopt rules and regulations regarding the common areas, the board can adopt traffic rules at a duly noticed board meeting. To enforce the rules, the association has a variety of enforcement tools available, including sending warning letters, notices of violation, fining, suspension of use rights, or further legal action.

Fining is the most common “enforcement tool” that is utilized to curb speeding, for associations who monitor speeding. Fining is most effective when pursued against owners/residents in the community. It is more difficult for an association to pursue fines against visitors, guests, invitees, or contractors who speed. So, for the most part, most associations that pursue fines for speeding opt to only pursue fines against owners/residents who speed. Anytime an association intends to fine an owner or resident, the process and procedures for fining must comply with the statute. Therefore, it would require the board to establish a fining committee (if your community does not already have a committee in place). Notice must be provided to the owner or resident of the violation and the owner or resident must be provided with an opportunity to be heard in front of a fining committee.

For those communities who do not want to impose fines, there are a variety of other enforcement tools available, including sending warning letters, notices of violation, suspension of use rights, or further legal action (such as seeking injunctive relief). When it comes to either fining or the suspension of use rights the association must follow the statutory procedure described above. An additional method of enforcement would be through an agreement with the county which would authorize a local law enforcement agency to enforce state traffic laws on the association’s private roads. Section 316.006, Florida Statutes, authorizes local law enforcement agencies to enforce state traffic laws on the private roads of associations pursuant to an agreement between the association and law enforcement. It requires a majority vote of the board of directors of a homeowners’ association to elect to have state traffic laws enforced by local law enforcement agencies on private roads that are controlled by the association.

There are other practical concerns with regard to enforcement against speeders, most notably, evidence of speeding. How can your board of directors “prove” that a vehicle is speeding? Depending on the speed of the vehicle, it could be established simply by the testimony of the person who saw the car speeding. Some communities have purchased equipment that monitors speed and that can also take photos or videos of the speeding vehicle. If your community is considering purchasing a speed gun, it should be noted that there is an administrative rule that deals with “speed measuring devices”. This rule provides that evidence of the speed of a vehicle measured by a radar speed measuring device is inadmissible in “any proceeding with respect to an alleged violation of provisions of law regulating lawful speed of vehicles” unless such evidence of speed is obtained by a law enforcement officer who meets certain requirements, including the satisfactory completion of certain training courses. The rule also requires a visual determination that the vehicle was speeding and a written citation based on evidence obtained from an approved speed measure device. Also, the particular speed measuring device must meet specifications and must be tested in accordance with other procedural rules related to the testing of speed measuring devices.
Slowing traffic helps promote a more relaxed residential environment and as you can see there are various options available. An association need not choose one however to the exclusion of all others. The key is be consistent and properly apply the various options chosen.

 

Jennifer Horan

 

 

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Join Us Online For A FREE Educational Webinar:  10 Natural Management Solutions for Your Waterbody   Wednesday, March 24 @ 2:00 pm (EDT)

Join Us Online For A FREE Educational Webinar: 10 Natural Management Solutions for Your Waterbody Wednesday, March 24 @ 2:00 pm (EDT)

  • Posted: Mar 22, 2021
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10 Natural Management Solutions for Your Waterbody

Wednesday, March 24 @ 2:00 pm (EDT)

We’re only 2 days away! During this much-anticipated webinar, our experts will explore our top 10 natural management techniques and discuss how the right combination of natural solutions can help transform your waterbody.

 

Don’t wait! Register today and start nurturing your waterbody with all-natural solutions that will enhance your lake and pond for years to come.


Registration Is Free. Spots Are Limited. 
Register Today!

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BIG NEWS ABOUT Glazer and Sachs & Condo Craze and HOAs BLOG – View our new Website!

BIG NEWS ABOUT Glazer and Sachs & Condo Craze and HOAs BLOG – View our new Website!

  • Posted: Mar 22, 2021
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BIG NEWS ABOUT MY BLOGS! by Eric Glazer of Glazer & Sachs

As you know, I have been writing a blog 50 times per year for the last 10 years. That’s over 500 columns that have spoken about virtually every aspect of community association living. Our readers love it. The only complaint about the blog was that it was not searchable by topic. It was difficult to find a specific blog about a specific topic. Not any more!  From now on, by going to either the website for Glazer and Sachs,

Or, by going to the website for Condo Craze and HOAs, you can click on our BLOG link –type a few key words in the search bar- and find a blog about a topic of your choice. You also still have the option to scroll through all our blogs in chronological order.

It’s just another way our firm tries to make the law accessible and enjoyable to everyone with an interest in community association law, whether you’re a Board member, owner, manager or service provider. We hope you enjoy reading them half as much as we enjoy writing them.

 

View our New Website

 

 

 

 

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