November Edition Florida Rising Magazine
November Edition
Florida Rising Magazine
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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
As Condominium and HOA attorneys, we often receive questions from our clients dealing with all the issues that can get in the way of conducting a successful annual meeting. Most often, it is the issue of not being able to achieve a quorum of owners in attendance—which stymies the Association’s ability to hold Board member elections, approve the budget, and take other important actions to further the HOA’s business for the coming year. So what happens if an Association’s Bylaws calls for annual board elections, but the Association does not hold elections for a number of years? Is there a Board? Does the Board have any authority? A recent case addressed these issues, and the court’s findings might surprise you.
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In a 2019 case, a Condominium Association sued an owner for violating the governing documents. The owner claimed that the Association’s Board, who initiated the lawsuit against him, lacked the authority to sue (and lacked the authority to do anything for the Association) because the Association had not held board elections in recent history. Instead, the same directors had been in place for many years, despite the mandate in the Bylaws that board elections should be held each year at the annual meeting. The Association had not held annual meetings, and as a result, no Board elections had taken place.
The trial court agreed with the homeowner defendant that the Association Board did not have any authority to act on behalf of the Association because they did not follow the Bylaws and hold annual elections. The Association appealed, and the Court of Appeals reversed the trial court’s decision, finding in favor of the Association, holding that the Board members did have authority because they were still “in power.” Why? The secret was held within the language of the Bylaws, which stated that Board members serve until the earlier of (1) the next annual meeting of the Association or (2) such time as the Board members are replaced. As the Association never held an annual meeting, and the Board members were not replaced, the Board members still legally served as the Board.
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Board members, beware—or at least, take care! If your Association does not or cannot hold its annual meeting due to quorum problems (for example) it is likely that you will remain on the Board until your successor is elected. Unless you have formally resigned your Board position as set forth in your Bylaws, you are still a director, with all of the duties, obligations, and authority that come along with your position.
Channel View East Condominium Association, Inc. v. Ferguson, 2019 WL 2865987 (Ct. App. Michigan).
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Tags: Condo and HOA, Condo and HOA Elections, Management News
Transfer fees are those fees an association may charge in connection with the sale or lease of a unit. There are significant differences between allowable transfer fees for homeowners’ associations as compared against condominium associations. When it comes to transfer fees for condominium associations, Florida law is patently clear – in no event may such a fee exceed $100 per applicant. In spite of this clear limitation, some condominium associations charge more than the statutory maximum, and doing so is not without significant consequence.
In fact, unit owners of a condominium association recently brought a successful class action lawsuit in Miami-Dade County against their condominium association that charged transfer fees beyond the statutory limit. That association now faces a significant financial impact from the suit. Not only must the association return the money charged over the statutory limit to each member of the class, the settlement stipulated that the association must pay $95,000.00 in attorney fees to the law firm representing the residents. The class period was from 2014 to 2019, and the association may end up paying over $200,000.00 to satisfy all the claims in the class. Yikes!
Specifically, section 718.112(2)(i), Florida Statutes, provides that “no charge shall be made by a condominium association in connection with the sale, mortgage, lease, sublease, or other transfer of a unit unless i) the association is required to approve such transfer and ii) a fee for such approval is provided for in the declaration. In no event may such fee exceed $100 per applicant other than husband/wife or parent/dependent child, which are considered one applicant.” The law does allow the association to require a prospective lessee place a security deposit, not to exceed the equivalent of one month’s rent, into an escrow account maintained by the association.
It is important to note that the statute requires that the condominium’s declaration provide authority to the association to approve a transfer and to impose the transfer fee. If these powers are not granted in your declaration of condominium, the condominium association may not charge any transfer fee. If the declaration of condominium does provide for a transfer fee, then the association must abide by the statutory maximum.
It is not unheard of for more than one condominium association to attempt to circumvent the statutory limitation by changing the name of the fee. Some may call the charges “screening fees” or “move in fees,” but that does not change the fact that the fees are still legally considered transfer fees. Remember, the limit is the limit, regardless of whether the condominium association’s expenses in obtaining credit and criminal history reports exceeds the $100.00 limitation. Any condominium association charging more than the statutory maximum is violating the statute and opens itself up to liability. With the award of attorney fees, there is an incentive for attorneys to bring more cases challenging any transfer fees that violate the statute. Your condominium association could be liable for hundreds of thousands of dollars for charging improper transfer fees.
On the other hand, there is good news for homeowners’ associations, these statutory maximums only apply to condominium associations. However, homeowners’ associations are not without some statutory limitation. Section 689.28, Florida Statutes, declares that transfer fee covenants violate public policy by impairing marketability of real property. However, section 689.28(2)(c)7., Florida Statutes, does allow a homeowners’, condominium, cooperative, mobile home, or property owners’ association to charge a fee if the declaration allows such a charge. So, a homeowners’ association may only charge a transfer fee if the authority is granted to the association in the declaration. Just keep in mind, if your declaration specifies a set fee, your association is limited to the fee provided in the declaration.
Now is a good time for all board members to review their community’s governing documents and seek advice from the association’s lawyer as to whether any existing transfer fee complies with the statutory requirements. A simple check now can help your association avoid costly litigation in the future.
Article written by Jeff Rembaum of KBRLegal.com
with permission for SFPMA to republish for our industry.
Kaye Bender Rembaum, Attorneys at Law
The law firm of Kaye Bender Rembaum, with its 19 lawyers and offices in Broward, Palm Beach and Hillsborough Counties, is a full service law firm devoted to the representation of more than 1,200 community and commercial associations, developers, and their members throughout the State of Florida. Under the direction of attorneys Robert L. Kaye, Michael S. Bender and Jeffrey A. Rembaum, the law firm of Kaye Bender Rembaum strives to provide its clients with an unparalleled level of personalized and professional service that takes into account their clients’ individual needs and financial concerns.
Thank You, SFPMA.COM
Tags: Condo and HOA, Condo and HOA Laws, Management News
Recruiting and retaining skilled team members can be challenging for community associations and management companies, especially in a very competitive labor market and with communities limited by tight budgets.
In this reality, it becomes even more important for associations and management companies to highlight their strengths and address organizational shortcomings, says business consultant Bob Begley.
The founder of Golden Sands Management Consultants, LLC, a Florida-based business consulting firm, Begley has been an innovative business thinker for more than 30 years. He has advised hundreds community leaders while serving as the CEO of Golden Sands Community Management, Inc. He’s also authored 27 continuing education courses for CAM’s and board members through his sister company, Florida CAM Courses.
The issue at hand is recruiting in a very different workforce. Begley states, “I noticed that over the past few years, there was a very big disconnect between what the young people that I was hiring wanted from their experience of work and what I needed from them at work, as their employer”. We want to help company leaders understand ways to attract talented workers.
People think that the secret to attracting and retaining talent is little things like, ‘Let’s give them free lunch’ or ‘What perks can we offer?’ or ‘What are our benefits compared to the benefits down the road?’ But at the end of the day, it really comes down to the quality of the organization. Is it successful? Is it high performing? Because good, smart people want to work in those environments.
Tags: Education & Licensing, Florida CAM Licensing, Management News
Every single penny counts in fundraising for this lifesaving organization. Whether you can donate $1 or $1,000, be certain that your generous contribution will change, and hopefully even save, lives in your community.
To make a lifesaving donation, click here:
https://pages.lls.org/ltn/ncfl/Orlando19/CohenLawGroup
My family, my team at Cohen Law Group, and I sincerely thank you for your continued support and lifesaving generosity.
Many of you know how important the Leukemia & Lymphoma Society (LLS) is to me, my family, and everyone here at Cohen Law Group. For years, you have aided our efforts in raising funds to give back to this lifesaving organization for which we are eternally grateful.
My own family was affected by Leukemia. We are not the only family to experience this journey but we hope, that through supporting LLS, we will be one of the last. This year we were honored to receive artwork from Kay Colton who, at only age 11, is a Leukemia survivor. Kay’s family and my own are just two examples of the thousands upon thousands of lives LLS has impacted.
Last year, we raised over $8,000 for LLS! Today we are asking for you to join us once more in our goal of raising $10,000 and beyond.
With the Utmost Gratitude,
Harvey V. Cohen, President
Here’s how your donation to LLS helps.
This lifesaving work is possible because of the generosity of communities like ours across America. There is still so much to accomplish in defeating blood cancers once and for all and so we hope that you are able to make a donation of any amount to our fundraiser today.
Supporting our Members
The balance sheet in your HOA financial statement is the quickest and easiest way to get a feel for the financial strength of your community association. There are three parts to a balance sheet: assets, liabilities, and equity.
Assets = Liabilities + Equity. This is the basic formula that your HOA balance sheet should follow. It will provide a general snapshot of how well your association is doing financially at a certain point in time whether it be at the end of every month, quarter, or year. It should be included in every official financial statement.
If you follow the formula and your equity is positive, good job! Your association is doing well and is bringing in more money than it owes. If equity is negative, it means that you should quickly reevaluate your finances; more money is being spent than is coming in.
Not all equity is created equal. Having an equity of $5,000 would be great for a small HOA that only brings in $8,000 monthly but not so great if your community collected $100,000 monthly. That’s where equity ratio comes in. Equity ratio can be calculated by taking your total equity and dividing it by total assets: Equity Ratio = Equity / Assets. Using the same example from above, the smaller HOA would have an equity ratio of 63% while the larger HOA’s ratio would be only 5%. When listed as a ratio, it becomes quite clear which HOA is more financially sound despite having the same total equity.
HOA balance sheets, whether prepared monthly, quarterly, or annually, are a good representation of the daily operation of your community association. A negative equity on an annual sheet does not only mean that an HOA has lost money over the year, but it also means that day to day operations are flawed and need to be reconsidered.
Just as with financial statements, the more frequently balance sheets can be made up, the more insight they can provide into the financial workings of a community association. While it is perfectly acceptable to release financial and balance sheets annually, it is preferred to release them monthly or quarterly. The more information your board of directors has to work with, the more effectively they can operate.
Tags: Condo and HOA Accounting, Condo and HOA Budgets, Management News
Before you can improve on something, it helps to have a clear picture of where the problems are. Take an honest look at what’s been going on between your HOA board and the association members. Perhaps you’ve already tried (several times) to connect with the members of your HOA, but it just doesn’t seem to work. They won’t listen. Or they seem to listen and then ignore what was said. The board members wonder why they can’t get anything through to the association members.
The Bridge to Nowhere, located in Southern California was intended to connect two places, but due to flooding, the original road was re-routed and now the bridge is part of a hiking trail. However, its use as a trail is often hampered because the trail going to it washes out, leaving the bridge practically inaccessible. In building a communication bridge, consider the approach—from both sides.
Be knowledgeable and confident in your purpose for the communication in the first place. Make sure the reason is clear and easy to see. As much as possible, prepare the other end of the bridge as well. Is it evident to the association members why they need to pay attention to the board and welcome the information into their lives? And do they have a clear way to approach the board with reactions to what the board says or to express both related and unrelated concerns that are common to the community? Is the board prepared to welcome what the owners say?
Does your communication bridge accommodate traffic going in two directions? Help your association members be prepared to receive your communication and deliver it in a means that is relevant and relatable.
Speak the same language as the members. If you are trying to communicate an issue that the board has researched in-depth or if it is closely related to your personal interests or profession, it might be easy to slip into using jargon. If the members don’t know what you’re saying or if they think you’re being arrogant, they will likely turn you off.
What if bridges meandered the way a scenic road up a mountain does, switching back and forth? While both engineering feats serve a purpose, that purpose is not the same and cannot be achieved by the same means. Know what you have to say and say it as concisely as possible.
Even the best bridges require maintenance. Potholes form; supports and structure are subject to forces of nature and friction; the vehicles using it change in size and shape. Over time, the communication bridge between the board and the association members will need attention. The people on the board and in the association fluctuate, economics change, the social environment changes, and nature can affect the physical environment too.
Monitor the use of your communication bridge and be aware of potential problems as they arise. Different communication modes are appropriate at different times. While communicating through brief, direct emails may work at times, there will be other times a regular newsletter will be necessary or maybe you can use bills posted on bulletin boards. Sometimes phone calls are more helpful and other times just keeping the bridge clear by friendly, personal communication like a “hello” when you meet at a mailbox will support more weighty business communications down the road.
A bridge smothered in fog may be daunting to traverse. If your association members feel they can’t see what’s going on, they are less likely to approach and you’re left with a communication gap instead of a bridge. Do not shroud important details in mystery and allow members to stumble onto them. Keep relevant information easily visible and accessible.
Every part of a bridge must be structurally sound to create a safe, positive transfer from one place to another. Make sure the structure supporting your communication bridge is sound. Are you using a management company? They are an important part of your structure. Make sure they are clear on the intent of the board and that the association members know how to access both the management company and the board with their concerns.
Tags: Business Articles, Condo and HOA, Condo and HOA Board of Directors, Management News
Legal Updates Seminar presented by Michael Bender of Kaye Bender Rembaum
Starting off the day was Seminars these lively events and training for Board Members, Managers and the Public alike were packed with so many people learning Legal Updates to Florida Laws, Educational Requirements for their Board Member Course, Funding of Construction Projects, Landscaping to promote a healthy landscape, A 40 year Re Certification – a staple for any Condo and or HOA before any budget season we think!, The 2020 Legal Update where many were invited to attend learning the most recent legislative changes and the discussion of the statutory changes made by the Florida Legislature and how they affect their communities., and a Fun but educational Seminar with a catchy title – Pets, Poop & Parking – Smile but dont laugh this was very informative with information on the most frequent annoyances in communities! and Voting and the Election Process in the Digital Age!
Taking the time and attend these wonderful courses and seminars are a must for any condo and HOA owner, New and current board members. Learning through the events will aid you with having the tools to effectively run your communities. We encourage each of you to bring this information back to your communities and let them know what you have learned! Post this on your own community website so you empower others.
In All it was a Very successful Day, We got to meet with members and others at the Expo.
Nick Vedder with Ronnie G of PRS. If you know PRS Pipe Restoration Solutions then you know Ron Giles (Ronnie G “The Pipe Guy” ) It was our pleasure to meet with you and to listen to how much knowledge you have with your trade!
Unbelievable Company Lighting of Tomorrow is working on many projects for Businesses as well as Condo’s all over South Florida, from Turtle Lighting and compliance to the Florida Codes to Led Lighting and Hurricane Poles for Parking Lots, to Designing Colorful Display lighting to make your Buildings and or LOGOS out of LED’s. They have their finger on helping lower our planet’s carbon footprint and it shows. Give them a call for your next projects Thank You Rosa it was our pleasure.
The Falcon Group sent their A Team to the Expo answering questions and networking all day. Nouchelle Hastings was finally taking a quick break to eat, Nope she put it to the side when I showed up…Sorry Nouchelle, It was my pleasure to meet with you and introduce myself.
Its always our pleasure to meet up with Kaye Bender Rembaum Michael, Great turn out for the Legal Updates Seminar.
I’m usually behind the scene, Rosa & Lauren of Lighting of Tomorrow whom I was delighted to meet, Put me in front of the camera.
Mr. Eric Glazer Was on hand early this morning presenting the Board Members Certification Course, then networking and speaking with clients and attendees for the duration of the day. It was our pleasure to speak to Glazer and Associates
Our very own Jessica Raffo and Jerry Esposito at today’s Broward Condo and HOA Expo!
It was my pleasure to meet the President and CEO Eleen McCrady of HOAst, Inc. this afternoon. Promoting Electronic Voting for your associations.
Jessica V and Jose Vazquez it was my pleasure to meet and discuss upcoming projects in Florida and a world of opportunity with SFPMA
On hand was Trident Ground Protection, Top Security Company in Florida and news is they are Expanding to North Carolina :)
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TALLAHASSEE, Fla. — New laws take effect Oct. 1 in Florida, impacting state residents.
A total of 27 new laws go in to effect.
However, the biggest is a provision of a law that already went into effect: holding a phone or other device while driving.
State lawmakers passed a law that made texting while driving a primary offense in Florida. That law went into effect in July. But starting Tuesday, a provision of the law goes into effect that requires drivers to be “hands-free” in certain areas. If you are spotted holding a phone, whether that be talking on it, flipping through emails, playing Pokemon Go or anything else, police can pull you over and cite you if you are driving in a school or work zone.
We talked to drivers in the Bay area who said they support the new law.
“I think it’s smart because the school zone by my house on MacDill, every single time I’m going through there when the lights are on people are just blowing by me, not paying attention,” said John Meyer. “I don’t think these people on their phones are even going to see the crossing guards. It’s a problem and I’m glad they’re doing something about it.”
“I think we need to protect our children first and foremost. It would be horrible to lose a child over a cell phone and I truly believe they need to implement this law,” said Elisandra Garcia.
Up next, especially for college students, a new hazing law comes into effect.
Senate Bill 1080 will target people who plan acts of hazing or recruit others to help – if there is a permanent injury during the hazing, that will now be a third degree felony. Reporting a hazing incident will get you immunity under the new law.
Police dogs and horses are getting some added protection in a new law taking effect tomorrow. Anyone killing or severely injuring a police horse or dog will now face a potential of 15 years in prison. That is a 10 year increase over the current law.
You can read the other laws going into effect Tuesday below. to get more details on them, go to the Florida House website.
Tags: Condo and HOA, Florida Rising Magazine, Law and Legal, Management News, SFPMA Social Media
Tags: Condo and HOA Common Area Issues, Management News, Member Highlights, Security and Safety Articles
SFPMA works throughout the State of Florida, we are a multi-member organization for the Condo, HOA and Property Management industry. Through knowledge based Articles, Events and our Members Directory, Clients find the right information to make an informed decisions for their Florida properties.