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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
Algae growth in South Florida lakes is not an uncommon thing, but it seems to be more of a nuisance in the summer months. What are the causes of algae growth in our community lakes and why is it more prevalent in our warmer, rainy season? Algae, like all other plants, requires sunlight and nutrients to grow. These ingredients are the primary factors in how much and how fast algae is going to grow, but our urban waterways have unique circumstances that also contribute to the potential for algae growth during our summer months.
The daily life of a property or community manager is filled with ever shifting priorities, addressing the urgent needs of residents, board members, and vendors. Does that sound familiar; is that you?
The unfortunate consequence is that drafting and sending effective community-wide announcements may well take a back seat when you are focused on today’s urgencies.
But those communications are vitally important! Those community-wide messages, by definition, touch everyone. Remember this about your residents:
Your residents are accustomed to receiving professionally produced emails and messages every day at home and at work. Consider these benchmarks: 2 out of 3 Americans age 55+ are members of Amazon Prime, already ordering and streaming online with regularity. And surveys show that tech-savvy millennials are eager to purchase homes and very likely a growing ownership constituency in your community. Regardless of your residents’ age, you must assume they are accustomed to technology and discerning about quality communications.
Year over year the real estate market has been great for sellers but terribly challenging for buyers laboring with increasing prices and shrinking affordability across the US and Canada. The upshot is that homeowners are more invested than ever – and selecting a home in your community came with an expectation that your association will nurture and protect their investment. In their eyes, the messaging you share (or fail to share) with the entire community reflects on the soundness of their investment.
It’s someone’s home and community, their place of safety, comfort and joy. The communications you share can amplify or diminish those positive feelings.
In short, your communications matter. The messages you send to all residents influence how they perceive their home, their community – and your management team. Community-wide messaging is your turn to be a positive image setter and you cannot afford to miss that opportunity.
Given that backdrop, here are seven keys for successful communications:
However important a message may be, you must assume recipients will scan it quickly. If the message warrants further attention, readers might dive in more carefully – but they will probably commit mere seconds to perform that initial scan.
So be concise! Rehearse removing words or even entire sentences. Would that change the content? If not, remove the extraneous verbiage. Make each word count.
Clearly state the subject at the top. Then clearly issue a call to action, typically in the closing. Make sure your draft is crystal clear on each. Here’s why I’m writing and here’s what I want!
Then re-read your draft and ask: Does your message answer every relevant question? Always answer core questions: who, what, when, where, why and how? You are sharing information; do it completely.
Finally, check your tone. Is the message professional and positive? Informality may be appropriate when announcing a community barbecue, but still convey professionalism. And stern reminders may be necessary when residents are required to act, but one can do so in a positive manner that speaks to success rather than failure. Be professional, be positive.
Your community may issue a few announcements or a lot. Different strokes for different folks. But whenever you do, brand you messaging to amplify the community’s image.
In most cases, branding means incorporating your logo at the top of each message. Simple to do – and even automatically supported by Concierge Plus.
Then consider adding a tag line to your logo (if space on the logo is an issue, perhaps the tag line could be added to each message’s footer). If the community’s logo is an acronym or similarly abstract, a tag line is a super means to establish or reinforce your identity. Perhaps your community is “The Heart of Houston” or the “Spirit of St Paul.” Have fun deciding who you are and then use your tag line religiously. “Just do it” worked for Nike. A tag line can work for you, too.
Finally, consider how to amplify your brand in each message’s signature or footer. Beyond furthering your community’s brand, the footer can also incorporate links that drive residents directly to your online community calendar or other key features within a dashboard like Concierge Plus. That reinforces the importance and centrality of an online dashboard such as Concierge Plus and, in turn, that behavior will lead to greater satisfaction for residents and efficiency for you. Win/win!
Your messages should adhere to a classy, repeatable style. In the same manner that your content should be uniformly concise, your style should be consistent. too.
Before setting your style, inventory and categorize the types of messages you have sent or intend to send. Determine if you wish to set a single style across all communications or set distinct styles by category. For example, should you have one style to announce social events and another for transmitting board minutes and updates?
Once you decide on your categories, develop a style for each one. To some extent that may be preordained by the communication solution your organization uses. But most contemporary community management platforms enable you to manage font size, font color, and more. Simply put, select appropriate and complementary font sizes and colors for the headlines, sub-headers, and body of your messages.
It may also be worth noting the following norm. From top to bottom of a message, larger fonts generally lead to smaller fonts as one progresses through a message. Think of this hierarchy: headlines, sub-headers, body, and footer will typically use progressively smaller fonts.
For complementary colors, check out guidance on what designers call the color wheel. But the commonsense advice here is: don’t get too busy, don’t get too cute. Complement your branding colors to set an attractive style but keep it simple and professional.
Bullets or ordered lists are great ways to delineate topics and improve readability. You may also wish to use bold and italics to differentiate your call to action or emphasize other content within a message. However, it is best to avoid underlining since that implies the presence of a link in the online world.
Ultimately, your audience will appreciate a simple, clean and consistent style – and you will have an easier time building such a style into your routine.
Including links can add substantial value for the recipients of your messages. Are you announcing candidates for a board election? Then include a link to their LinkedIn profile so that residents can learn more about them. Are you holding a meeting or event at a remote location? Then include a link with directions.
Once you become accustomed to incorporating links, you’ll find a million and one ways they are beneficial. Also remember to include useful links to your community’s dashboard,
However, be aware that links included in an email can easily be forwarded to any party. If, for example, you are you hosting a Zoom meeting for residents only, be aware that including the Zoom link in an email makes it easy for the community to share that link with non-residents by forwarding. Some solutions explicitly support links within calendar entries, and while that does not fully preclude inappropriate sharing, it does mitigate risk.
Would you try to sell a home without including photos of the property? Would you buy a product online without seeing a photo first? Of course not!
You may not be selling homes or merchandise, but it is a vast understatement to merely say images in message add flair and appeal.
For example, are you reminding residents to leash their dogs? A simple photo can instantly capture their attention and help a reader immediately grasp the subject of the message.
However, be judicious. Do not use too many images. Yes, they are very effective. But do not allow use of too many images to compete with the message itself.
Also select images that are relatable. Venues known to your reader are relatable. Are you announcing a new pool policy; include a photo of your pool. Photos of people are relatable. Are you announcing an event? Include a photo of your meeting host, past attendees, or a stock image of people at a similar event.
Remember that it may not be permissible to re-use images you find on the internet. Are you using photos of your community captured from the developer’s website? Then insure you have the developer’s permission to re-use the images(s). Are you using images of residents in the community? Make sure they do not object to your re-use of their likeness.
Stock images are a great resource. Some are free, some are not. For example, Pexels offers free and searchable access to a wealth of images, proclaiming that they may be used for free, without attribution, and may be edited as you wish. Access to other free resources can be found here.
There are also many affordable solutions to access and re-use images. One such service is called SnagIt Assets. This content-rich solution permits you to search, download and use an unlimited number of photographic images, plus access numerous handy symbols, templates and themes for a low annual subscription fee. SnagIt Assets also enables you to seamlessly download images directly into image capture and editing software from the same company that’s called, not surprisingly, SnagIt. That is quite convenient.
In fact, if you send messages with any regularity, obtain and learn image capture and editing software like SnagIt. It has a multitude of benefits, such as re-sizing images, cropping images, superimposing text on an image, or adding borders or special effects. Once you get accustomed to using an image editing tool, you will wonder how you ever did without one.
Now that you have taken inventory and established one or more messaging styles, it’s time to create, test and save templates. Templates not only enforce use of the style(s) you create; they also save oodles of time as you churn out new messages!
You could initially create your templates in Google Docs or MS Word, then copy/paste them into your communication platform for new messages. Better yet, create a template using the rich text editor included in a product like Concierge Plus that empowers you to save a template as a draft announcement, then duplicate that template again and again as new messages are needed.
It is vitally important to test your templates. Ensure that messages will look and behave as you wish when a resident sees them via their email application. Frankly, it can be hard to test every scenario, but try to examine the emailed template using popular solutions on both computers and phones such as MS Outlook, Gmail, and Yahoo Mail. Then adjust your template works if you find it works on some platforms but not others.
A failure to communicate creates a vacuum and, as we know, nature abhors a vacuum. The frequency of communication may vary depending on the nature of your community. But be sure to provide sufficient oxygen. Make it a point to communicate at regular intervals.
Conversely, be wary of inundating residents with messages. If you have a series of small messages that do not warrant individual messages, consider packaging them into a periodic digest that residents can review weekly or monthly. Excessive messaging is akin to a public nuisance and the impact of your messages will be diluted.
For messages that appeal to a limited audience, leverage “group” messaging supported by a solution like Concierge Plus. For example, if you have an active club of yoga enthusiasts, create a yoga group to share messages explicitly with that audience.
Also use and consistently update your community calendar to show yoga and other club events within your community. Make their presence known to the entire community via the calendar but avoid filling residents’ inboxes with a barrage of announcements.
Also consider how you wish to deliver messages. Should they be distributed via email and appear on a public display in your lobby or a clubhouse, too? In fact, remember to refresh messages on your public display monitors. If you fail to update those messages with reasonable frequency, the community will naturally begin to ignore the display and its value will be undermined.
Is your message urgent? Does it warrant text or voice delivery in addition to email? Be prudent but leverage all the tools at your disposal.
We understand that adhering to best practices may take a backseat when we get mired in daily priorities. Our advice is simple. Don’t let that happen to you.
Commit to solid and consistent communication practices. Spend time up front to get setup. Establish your branding. Inventory your messaging. Create your styles. Build re-usable templates. All that enables you to focus on the content of your communications day by day.
The result will be a more efficient workflow for you – and the community will applaud your results and contribution!
sfpma want to thank Geri Bell for always providing us with the top Articles for our Industry.
Becker’s Lawyers are members of sfpma, can be found on our Directory, Sponsors many events and is one of the top firms for Condo, Hoa and Management professionals for our industry.
Thank You from all of us at SFPMA.Org
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For many homeowners associations, a top priority is ensuring that the homes in the community are maintained in conformity with the “community-wide standard.” But, what is this subjective standard? How is compliance measured? What is the process to be judged when a request to the association’s architectural review committee (ARC) is made? The ARC is instrumental in ensuring that the community-wide standard is met. However, your association may run into a problem if the ARC denies a request from a homeowner if the association has not adopted specific, objective criteria and guidelines on which the ARC can rely.
Sometimes applications to the ARC are denied because the proposed modifications were not “in harmony” with the other homes in the community or did not conform with the “community-wide standard.” However, such a limitation is vague, and a denial based on whether a particular modification is “harmonious” is subjective. Thus, the members are entitled to specific guidelines regarding what is allowed and what is not allowed, and in fact, this is required by law.
The association’s ARC can only be as effective as the objective guidelines and standards drafted into the declaration and board-adopted rules. If your ARC is relying on aesthetics or other subjective criteria that are simply “personal preferences” rather than written, adopted, and published objective standards and guidelines, any disapproval is vulnerable to a successful challenge. In fact, in the seminal case regarding approval of architectural modifications, Young v. Tortoise Island Homeowner’s Ass’n, Inc., 511 So.2d 381 (Fla. 5th DCA 1987), the court held that where the governing documents were silent as to the modification at issue, a denial could not be based on the architectural control board’s opinion regarding “aesthetics, harmony and balance—admittedly very personal and vague concepts.”
In Young, the owners submitted an application to build a flat roof on their home. The homes immediately surrounding the home were all peaked roofs. Nothing in the governing documents prohibited an owner from building a flat roof, and the requested roof complied with all of the specific requirements set out in the governing documents. However, the architectural control board denied the owners’ request because there was a “very strong feeling” that the flat roof would not be “architecturally compatible with the other homes.” In the end, the Youngs built the flat roof despite the association’s disapproval, arguing that the architectural control board had no authority to impose a prohibition against flat roofs. The court agreed with the Youngs, holding that
“In the absence of an existing pattern or scheme of type of architecture which puts a prospective purchaser on notice that only one kind of style is allowed, either in the recorded restrictions or de facto from the unified building scheme built on the subdivision, such a board does not have the power or discretion to impose only one style over another based purely on ‘aesthetic concepts.’”
The flat roof violated no recorded restrictions, no objective rule adopted by the association, and no de facto common existing building style in the community. Therefore, the court held that it was beyond the power of the architectural review board to prohibit the flat roof.
The concept in Young was further codified in 2007 in §720.3035(1), Florida Statutes, which provides that an association or the ARC has the authority to review and approve plans and specifications only to the extent that the authority is specifically stated or reasonably inferred as to location, size, type, or appearance in the declaration or other published guidelines and standards. More specifically §720.3035(1), Florida Statutes, provides that the authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.
In other words, the ARC can only approve or deny requested modifications based on objective standards with specificity as to location, size, type, or appearance that are set out in the declaration or other published guidelines and standards. Without specific, objective standards to rely upon, the ARC is at risk of making arbitrary decisions regarding approval. Basing ARC denials on concepts like “aesthetics, harmony, and balance” will land the association in hot water if an owner challenges such denial. It is far safer to base approval or denial on objective standards as set out in the declaration or as adopted by the board.
Creative drafting by an association’s attorney is critical in order to capture those ARC applications where a member may request a modification that is not squarely addressed by the governing documents. In plain English, a “catchall” amendment to the declaration can be artfully drafted that stands for the proposition that, if such a request is made, then the existing state of the community is the applicable standard by which the application is to be judged. For example, if the Tortoise Island Homeowner’s Association had had such a provision in its declaration, then given that there were no flat roofs in the community, the existing state of the community may have provided a lawful basis for the ARC to deny the request, thus possibly leading to a whole different result in the case.
On a related note, there are strict procedural requirements that your association must follow, most especially if the ARC intends to deny an ARC request. It is likely many ARCs do not conduct their activities in conformity with Florida law such that a denial could withstand judicial scrutiny. Pursuant to §720.303(2), Florida Statutes, a meeting of the ARC is required to be open and noticed in the same manner as a board meeting. In other words, notice of the ARC meeting must be posted in a conspicuous place in the community at least 48 hours in advance of the meeting, and the meeting must be open for the members to attend. In addition, pursuant to §720.303(2)(c)3., members of the ARC are not permitted to vote by proxy or secret ballot. Bare bone minutes should be taken as well to create a record of ARC committee decisions, most especially denials.
We hear from many associations that the ARC does not meet openly or notice their meetings. This leaves any decision made by the ARC vulnerable to challenge. If the ARC denies an application but fails to do so at a properly noticed meeting, the owner can challenge the denial claiming that it is not valid as the ARC did not follow proper procedures. Many declarations contain language which provides that if an ARC application is not approved or denied within a certain period of time, the application is deemed approved. In that case, if the ARC’s denial of an application is not valid because the ARC failed to comply with the procedural requirements for the meeting, an application which violates the declaration or the ARC standards may be deemed approved by operation of the declaration! By complying with the provisions of Chapter 720, Florida Statues, your association can avoid that disaster.
Practice tip: Remember that notice of any board meeting at which the board will consider a rule which restricts what an owner can do on their parcel must be mailed, delivered, or electronically transmitted to the members and posted conspicuously on the property not less than 14 days before the meeting.
If your association has not adopted objective ARC standards and guidelines including the “catchall” provision discussed above, now is the time to start! We recommend that you contact your association’s counsel prior to drafting such rules to ensure that the association is in compliance with the requirements of the governing documents and Chapter 720, Florida Statutes.
by Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.
Tags: Condo and HOA
When the original bill was filed that required condominiums to have a website, the statute was only going to apply with condominiums of 500 units or more. In effect, the statute would have applied to less than one percent of all condominiums in the state. I met with the legislator who drafted the bill and suggested that the bill be revised to apply to all condominiums with 50 units or more. The compromise was 150 units.
As we know, The Florida Legislature does not like to regulate HOAs, so for whatever reason, HOAs with 150 homes or more are not required to have a website. Instead, if a homeowner wants access to records, they must make the request by certified mail, return receipt requested. If the association ignores them, the unit owner has to ask for pre-suit mediation. If that fails, the unit owner has to file a lawsuit. All because they wanted copies of some of the official records. It’s ridiculous.
Why not make your community more transparent and accessible now? Who cares if you’re an HOA and you’re not requited by law to have a website? Set one up anyway, regardless of the number of homes you have. Are homeowners in a 50 home community less entitled to see the records than an owner in a 150 home community? Of course not.
If you’re in a condominium of less than 150 units, I understand that the law does not require your condominium association to have a website containing the official records. So what? Create one anyway. I can tell you that over the past two years, as least as far as the larger condominiums go, there has been less arguments between owners and the board when it comes to being able to access the official records, simply because the association is required to have these official records on an association website.
I will also warn condominium associations that the DBPR is not fooling around when making sure that condominium associations with 150 units or more comply with the law. They will investigate any complaint received from an owner who claims their association is not complying with the law. They want those records posted on-line. The association’s failure to do so can and will result in a fine for several thousand dollars.
Placing the records on-line frees up the manager’s valuable time because now they are less likely to have to respond to unit owner requests for access to records. I’m looking forward to see how Rafael feels about the law. Have you had success in your community with the association’s website? If your community doesn’t have one, would you want one?
SFPMA suggests even if you are not required to have a website HAVE ONE BUILT FOR YOUR CONDO OR HOA.
The roles, responsibilities, and differences between these two jobs Key takeaways:
Find Property Managers
The terms property manager and community association manager are sometimes used interchangeably, but there are important differences.
Each job has its own responsibilities and functions. Property managers primarily work with tenants and oversee individual apartment units or homes.
A property manager’s typical responsibilities include collecting rent, showing vacant units to prospective tenants, and handling maintenance and repairs for individual apartments or homes.
Community association managers typically work with the board of directors of an HOA or COA.
A community association manager’s usual duties include preparing budgets, collecting bids from vendors, and overseeing repairs and maintenance of amenity spaces or common areas.
A property manager deals with the day-to-day operations of a property or an association, whereas a community association manager is more likely to be involved in large-scale or big-picture projects that affect the community as a whole.
It is important to know the differences between a property manager and a community association manager to hire the right professional for the task and contact the right person with your question or concern.
You may have heard the terms property manager and community association manager used interchangeably. While the two job titles have similarities, there are also key differences between them. If you’re a real estate or property management professional – or a vendor who serves these industries – it is important to understand that property managers and community association managers have different responsibilities and job functions. We will outline them below.
Property managers oversee the physical property itself and generally respond to tenant inquiries about their particular unit. They are usually the ones who manage leases, collect rent or Condo/HOA payments, handle maintenance and repairs for units or homes, and address tenant complaints and concerns.
The core responsibilities of a property manager include:
Rent or HOA payment collection
Repair management and maintenance for each unit or home
Vacant unit showings to prospective tenants
Responding to tenant complaints
Inspecting units after tenants move out
Handling an eviction process
Community association managers
Community Association Managers (CAMs) are usually in charge of budgets, record-keeping, and managing community spaces such as a clubhouse, pool, or community landscape features. They’re involved in all aspects of running the HOA (if there is one) or the community and thus have extensive knowledge of HOA governing rules and local applicable laws.
The Core responsibilities of a CAM include:
Supervision of community maintenance, such as common areas, pool cleaning, landscaping, etc.
Creation and overseeing of budgets.
Site inspections.
Negotiation of contracts for common property repairs or enhancements.
Assisting the board in selecting vendors; collection and presentation of bids for projects.
Both property managers and CAMs might handle tasks such as pool maintenance or trash collection, but in general the former takes on the responsibilities of a landlord while the latter oversees larger-scale projects and activities that have implications for the entire community. You can think of property managers as dealing primarily with individual tenant needs and CAMs as handling the needs of the entire building, neighborhood, or association.
Most states require property managers to obtain a real estate license, but this isn’t the case for CAMs. They may or may not have a real estate license, but they should be well-versed in local housing laws and know the rules of the owner’s association that hired them. It is important to properly vet prospective candidates whether you’re seeking a property manager or a CAM.
Why the differences matter
It is important to know the differences between a LCAM and a property manager so that you can hire the right professional for the tasks at hand. From a tenant, unit owner, or vendor perspective, knowing the differences between these two roles can help you determine which person to address with a specific questions or problem.
Do you want to become a Property Manager? SFPMA and our Education Partners Provide State Approved – Online and In classroom courses for Licensing, Educational and instructive information through the association. Find out more about Licensing & Advancement Courses for the property management industry. Get your License Today! Become a Licensed Property Manager
Tags: Board of Directors, Management News, Members Articles
For many homeowners associations, a top priority is ensuring that the homes in the community are maintained in conformity with the “community-wide standard.” But, what is this subjective standard? How is compliance measured? What is the process to be judged when a request to the association’s architectural review committee (ARC) is made? The ARC is instrumental in ensuring that the community-wide standard is met. However, your association may run into a problem if the ARC denies a request from a homeowner if the association has not adopted specific, objective criteria and guidelines on which the ARC can rely.
Sometimes applications to the ARC are denied because the proposed modifications were not “in harmony” with the other homes in the community or did not conform with the “community-wide standard.” However, such a limitation is vague, and a denial based on whether a particular modification is “harmonious” is subjective. Thus, the members are entitled to specific guidelines regarding what is allowed and what is not allowed, and in fact, this is required by law.
The association’s ARC can only be as effective as the objective guidelines and standards drafted into the declaration and board-adopted rules. If your ARC is relying on aesthetics or other subjective criteria that are simply “personal preferences” rather than written, adopted, and published objective standards and guidelines, any disapproval is vulnerable to a successful challenge. In fact, in the seminal case regarding approval of architectural modifications, Young v. Tortoise Island Homeowner’s Ass’n, Inc., 511 So.2d 381 (Fla. 5th DCA 1987), the court held that where the governing documents were silent as to the modification at issue, a denial could not be based on the architectural control board’s opinion regarding “aesthetics, harmony and balance—admittedly very personal and vague concepts.”
In Young, the owners submitted an application to build a flat roof on their home. The homes immediately surrounding the home were all peaked roofs. Nothing in the governing documents prohibited an owner from building a flat roof, and the requested roof complied with all of the specific requirements set out in the governing documents. However, the architectural control board denied the owners’ request because there was a “very strong feeling” that the flat roof would not be “architecturally compatible with the other homes.” In the end, the Youngs built the flat roof despite the association’s disapproval, arguing that the architectural control board had no authority to impose a prohibition against flat roofs. The court agreed with the Youngs, holding that
“In the absence of an existing pattern or scheme of type of architecture which puts a prospective purchaser on notice that only one kind of style is allowed, either in the recorded restrictions or de facto from the unified building scheme built on the subdivision, such a board does not have the power or discretion to impose only one style over another based purely on ‘aesthetic concepts.’”
The flat roof violated no recorded restrictions, no objective rule adopted by the association, and no de facto common existing building style in the community. Therefore, the court held that it was beyond the power of the architectural review board to prohibit the flat roof.
The concept in Young was further codified in 2007 in §720.3035(1), Florida Statutes, which provides that an association or the ARC has the authority to review and approve plans and specifications only to the extent that the authority is specifically stated or reasonably inferred as to location, size, type, or appearance in the declaration or other published guidelines and standards. More specifically §720.3035(1), Florida Statutes, provides that the authority of an association or any architectural, construction improvement, or other such similar committee of an association to review and approve plans and specifications for the location, size, type, or appearance of any structure or other improvement on a parcel, or to enforce standards for the external appearance of any structure or improvement located on a parcel, shall be permitted only to the extent that the authority is specifically stated or reasonably inferred as to such location, size, type, or appearance in the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants.
In other words, the ARC can only approve or deny requested modifications based on objective standards with specificity as to location, size, type, or appearance that are set out in the declaration or other published guidelines and standards. Without specific, objective standards to rely upon, the ARC is at risk of making arbitrary decisions regarding approval. Basing ARC denials on concepts like “aesthetics, harmony, and balance” will land the association in hot water if an owner challenges such denial. It is far safer to base approval or denial on objective standards as set out in the declaration or as adopted by the board.
Creative drafting by an association’s attorney is critical in order to capture those ARC applications where a member may request a modification that is not squarely addressed by the governing documents. In plain English, a “catchall” amendment to the declaration can be artfully drafted that stands for the proposition that, if such a request is made, then the existing state of the community is the applicable standard by which the application is to be judged. For example, if the Tortoise Island Homeowner’s Association had had such a provision in its declaration, then given that there were no flat roofs in the community, the existing state of the community may have provided a lawful basis for the ARC to deny the request, thus possibly leading to a whole different result in the case.
On a related note, there are strict procedural requirements that your association must follow, most especially if the ARC intends to deny an ARC request. It is likely many ARCs do not conduct their activities in conformity with Florida law such that a denial could withstand judicial scrutiny. Pursuant to §720.303(2), Florida Statutes, a meeting of the ARC is required to be open and noticed in the same manner as a board meeting. In other words, notice of the ARC meeting must be posted in a conspicuous place in the community at least 48 hours in advance of the meeting, and the meeting must be open for the members to attend. In addition, pursuant to §720.303(2)(c)3., members of the ARC are not permitted to vote by proxy or secret ballot. Bare bone minutes should be taken as well to create a record of ARC committee decisions, most especially denials.
We hear from many associations that the ARC does not meet openly or notice their meetings. This leaves any decision made by the ARC vulnerable to challenge. If the ARC denies an application but fails to do so at a properly noticed meeting, the owner can challenge the denial claiming that it is not valid as the ARC did not follow proper procedures. Many declarations contain language which provides that if an ARC application is not approved or denied within a certain period of time, the application is deemed approved. In that case, if the ARC’s denial of an application is not valid because the ARC failed to comply with the procedural requirements for the meeting, an application which violates the declaration or the ARC standards may be deemed approved by operation of the declaration! By complying with the provisions of Chapter 720, Florida Statues, your association can avoid that disaster.
Practice tip: Remember that notice of any board meeting at which the board will consider a rule which restricts what an owner can do on their parcel must be mailed, delivered, or electronically transmitted to the members and posted conspicuously on the property not less than 14 days before the meeting.
If your association has not adopted objective ARC standards and guidelines including the “catchall” provision discussed above, now is the time to start! We recommend that you contact your association’s counsel prior to drafting such rules to ensure that the association is in compliance with the requirements of the governing documents and Chapter 720, Florida Statutes.
Jeffrey Rembaum’s, Esq.
legal practice consists of representation of condominium, homeowners, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Board Certified Specialist in Condominium and Planned Development Law and is a Florida Supreme Court Certified Circuit Civil Mediator. He is the creator of “Rembaum’s Association Roundup,” an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations. His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list, and was also named Legal Elite by Florida Trends Magazine.
He can be reached at 561-241-4462.
Tags: Condo and HOA Law
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.
