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AQUATIC RESOURCE MANAGEMENT / Lunch and Learn

AQUATIC RESOURCE MANAGEMENT / Lunch and Learn

November 16 @ 11:30 AM – 12:30 PM

AQUATIC RESOURCE MANAGEMENT / Lunch and Learn

WEBINAR Florida

AQUATIC RESOURCE MANAGEMENT  1 CEU – COURSE NUMBER: 9628717 Zoom Lunch and Learn Free CEUs for: Property Managers Board Members Tuesday, November 16, 2021 11:30am-12:30pm Ever wondered what is going on with your lake? This course will help you better understand lakes on property, native plants, fish stocking, stormwater maintenance, erosion issues, and more!

Sign up here! RSVP: CSullivan@AllstateManagement.com

 

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Traditional Collection Methods Versus the HOA Business Model

Traditional Collection Methods Versus the HOA Business Model

  • Posted: Nov 04, 2021
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Traditional Collection Methods Versus the HOA Business Model

The Collections Conundrum

Human interaction is the foundation of a good business, that’s a pretty standard assessment. But that interaction gets complicated in a business like a community association. It can be a very muddy concept–homeowners buy a house that comes with a way to try to guarantee property values for a marginal fee, but it isn’t always clear that this agreement makes them part of a larger business model. This complicated relationship can make difficult business practices, like debt collection, all the more painful.

Fabio Ades, owner of PMI Top Florida Properties, who manages Serenity Place IV Condominium, found Axela’s post-foreclosure process to be the key to uncomplicating this unique business relationship, and softening the blow of debt collection.

“Implementing Axela was seamless for my management team because it connected with our existing accounting system. The way Axela’s systems are set up just made things easier for us,” says Ades. “But more importantly, Axela helps our customers. Consistent collections keep up the health of the community and protect members’ assets.”

Traditional Collections in an Untraditional Business Model

Collections are traditionally a process regarded as heartless. It calls to mind thoughts of unending phone calls from aggressive debt collectors armed with threats of asset repossession and loss of livelihood. It creates a general feeling of uneasiness in just about everyone. Unlike other business collections processes, that lack of ease is typically felt on both sides of the table when it comes to collections in a community association.

“It’s hard for people to remember that it’s not Fabio calling to collect–it’s not the Community Association Manager. It’s not the Board Treasurer who’s the bad guy, we’re not the bad guys,” Ades said.

Unfortunately, that’s what homeowners see. They see the person they’ve made friends with, they see their neighbor, the grill master who lives two doors down, or the dog walker on the third floor. They’re being asked by friendly faces for money they’re struggling to make, and those friends and neighbors are just as unhappy to be doing the asking.

But that’s the job. And that job is made a lot harder with the knowledge that there isn’t a lot of wiggle room when it comes to acting on delinquency.

“Management companies frequently have regulations that make it hard to help homeowners,” Ades lamented.

Community associations have little to no flexibility when it comes time to collect on past due payments from a homeowner. This is often a four-step process:

  1. Send an initial courtesy letter to the owner about the unpaid fees, alerting the homeowner of penalty fines if they remain unpaid
  2. Send a second courtesy letter, again warning of penalty fines for unpaid fees
  3. Send a final courtesy letter requesting payment and warning of pending legal action
  4. Refer the case to an attorney to begin pursuing legal action, at cost to the association

When a lawyer is on a collections case and the bank forecloses, it’s game over. If the property is in a super lien state then the association will recover a pittance of what is owed and the attorney will advise the association to “write off” the balance. Also, the attorney will advise the association that they owe him/her for legal services.

All of this happens over the course of 60 to 90 days. For a homeowner struggling to make payments, that time flies by and often isn’t enough to get current on the account.

 

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Sanctuary Gardens – We are open to the public!

Sanctuary Gardens – We are open to the public!

  • Posted: Nov 03, 2021
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Sanctuary Gardens

Sanctuary Gardens specializes in providing exceptional landscape services and quality Installations. We are meticulous in detail, so that any residential or business property would appear at it’s finest. We would take you from the designing of your property all the way to the Installation of the Landscape. If you are a do-it-yourself we can help as well, our nursery carries a variety of different plants and landscape material.

Find us on the Members Directory

Find us on Facebook

Looking for Bromeliads???
Stop in today for really neat exciting bromeliads.
Bromeliad plants provide an exotic touch to the home and landscape bringing a sense of the tropics and sun-kissed climates. Growing a bromeliad as a houseplant is easy and brings interesting texture and color to the interior garden. Learn how to care for a bromeliad plant and you will have a long lasting unique houseplant that is low maintenance.
   
 

We are open to the public!

Monday – Friday  8:00AM to 5:00PM
Saturday – 8:00AM to 3PM
Fab Nunez
V.P
954-394-4625
Sanctuary Gardens
Come visit our garden center, we offer a wide variety of palms, plants, trees, and accessories. We always do our best to accommodate our clients in every possible way. Whether you are looking for garden accessories or ideas you’ll be sure to find it here. We have a live showroom where you can see the type of waterfalls we do, interactive portfolio, and intensive detailed pictures of our landscape design. If we do not have what you are looking for, we will try all of our sources to find it for you. We also offer delivery to many parts of South Florida.
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Electronic Board of Directors and Membership Meetings in a Post-Covid-19 World

Electronic Board of Directors and Membership Meetings in a Post-Covid-19 World

  • Posted: Oct 26, 2021
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Electronic Board of Directors and Membership Meetings in a Post-Covid-19 World

 

Well, it is not quite a post-COVID-19 world yet, but hopefully, it will be one day soon. We are, however, living in a post-governor-ordered-state-of-emergency world, meaning that the emergency powers granted to condominium, cooperative, and homeowners’ associations’ boards of directors by virtue of the governor’s emergency orders have come to an end, with this caveat: The emergency authority granted to community association boards of directors after the expiration of the governor’s emergency orders is, generally speaking, “limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the owners and their family members, tenants, guests, agents, or invitees, and to mitigate further damage and make emergency repairs.” As such, each passing day diminishes the arguments supporting a board’s reasonable reliance on the utilization of these emergency powers. However, given the recent uptick in Covid cases plus ever evolving CDC guidance issued towards the end of July, 2021, some community associations may consider relying on the continuance of the emergency powers provision. If so, it is strongly recommended that such a community association receive proper guidance from its legal counsel.

 

Interestingly, until July 1, 2021, electronic meetings of community association members and boards of directors were not specifically addressed in the legislative grant of emergency powers which could be used during a governor-declared state of emergency. Rather, the emergency powers of days gone by provided that association boards of directors could conduct board meetings and membership meetings with notice given in as practicable a manner as possible, including publication, radio, United States mail, the Internet, public service announcements, and conspicuous posting on the common property or any other means the board deems reasonable under the circumstances. Notice of board decisions may be similarly communicated. In addition, the board could cancel and reschedule any association meeting. Under certain circumstances, decisions could be made on the spot, so to speak, without the need for a noticed meeting. The legislative emergency powers can be found in §718.1265, §719.128, and §720.316 of the Florida Statutes for condominium, cooperative, and homeowners’ associations, respectively. Nowhere in the pre-July 1, 2021 version of the emergency powers legislation did these powers set forth the clear right of the association to conduct solely electronic board and membership meetings, though due to life safety reasons, such power was inferred. However, it should be noted that effective July 1, 2021 the emergency powers legislation was significantly revised to provide for the use of electronic meetings during a governor declared state of emergency.

 

BOARD MEETINGS

With this as our backdrop, without a declared state of emergency can community associations continue to hold electronic board  meetings via platforms such as zoom? Let us examine the relevant legislation that bears on this important inquiry. As to condominium board meetings,

[a] board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting… Meetings of the board of administration at which a quorum of the members is present are open to all unit owners… The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items… [§718.112(2), Fla. Stat. (2020), Emphasis added]. Note that similar provisions are provided for cooperative associations in §719.106), Fla. Stat. (2020).]

 

As to homeowners’ association board meetings,

[a] meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. Meetings of the board must be open to all members, except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. A meeting of the board must be held at a location that is accessible to a physically handicapped person if requested by a physically handicapped person who has a right to attend the meeting… Members have the right to attend all meetings of the board. The right to attend such meetings includes the right to speak at such meetings with reference to all designated items. [§720.303(2), Fla. Stat. (2020), Emphasis Added.]

In addition, the “Florida Not For Profit Corporation Act,” set out in Chapter 617, Florida Statutes, which applies, in large part, to condominium, cooperative, and homeowners’ associations, so long as not in conflict with Chapters 718, 719, and 720 of the Florida Statutes (and certain other exceptions not relevant to this analysis), provides that,

Unless the articles of incorporation or the bylaws provide otherwise, the board of directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director participating in a meeting by this means is deemed to be present in person at the meeting. [§617.0820(4), Fla. Stat. (2020).]

Mixing all of these ingredients together so that they all have meaning clearly implies that the community association board can conduct its board meetings via electronic means, like Zoom.  However, in our opinion, a more prudent approach is to also make on-site accommodations available to those who wish to attend in person. This can be easily accomplished by ensuring the meeting is noticed in a physical location where the non-board member owners can listen and participate through use of an on-site speaker phone or computer that is preferably provided or otherwise arranged for by the association. (Reminder that Zoom also has a call in feature for those who do not access to, or are not comfortable with, a computer).

 

MEMBERSHIP MEETINGS

As to all community association membership meetings, members have a right to speak at meetings of the membership. Pursuant to §718.112(2)(d)7 and §719.106(1)(d)4, Florida Statutes, members of condominium and cooperative associations, respectively, have the right to participate in meetings of the unit owners with reference to all designated agenda items. Pursuant to §720.306(6), Florida Statutes, members of a homeowners’ association have the right to speak with reference to all items opened for discussion or included on the agenda. During elections and other meetings where a vote of the membership is at issue, members should be able to observe the tallying of ballots.

 

As to condominium associations, membership meeting requirements include the following:

An annual meeting of the unit owners must be held at the location provided in the association bylaws and, if the bylaws are silent as to the location, the meeting must be held within 45 miles of the condominium property… [§718.112(2)(d)1, Fla. Stat. (2020).]

 

As to cooperative associations, membership meeting requirements include the following:

There shall be an annual meeting of the shareholders… The bylaws must provide the method for calling meetings, including annual meetings… [§719.106(1)(d), Fla. Stat. (2020).]

 

As to homeowners’ associations, membership meeting requirements include the following:

The association shall hold a meeting of its members annually for the transaction of any and all proper business at a time, date, and place stated in, or fixed in accordance with, the bylaws. The election of directors, if one is required to be held, must be held at, or in conjunction with, the annual meeting or as provided in the governing documents… [§720.306(2), Fla. Stat. (2020).]

 

Furthermore, and of great importance, there is the following provision from the Florida Not For Profit Corporation Act, a/k/a Chapter 617, Florida Statutes:

If authorized by the board of directors, and subject to such guidelines and procedures as the board of directors may adopt, members and proxy holders who are not physically present at a meeting may, by means of remote communication participate in the meeting and be deemed to be present in person and vote at the meeting if:

1)    the corporation implements reasonable means to verify that each person deemed present and authorized to vote by means of remote communication is a member or proxy holder; and

2)    the corporation implements reasonable measures to provide such members or proxy holders with a reasonable opportunity to participate in the meeting and to vote on matters submitted to the members, including an opportunity to communicate and to read or hear the proceedings of the meeting substantially concurrent with the proceedings, and

3)    if any member or proxy holder votes or takes other action by means of remote communication, a record of that member’s participation in the meeting must be maintained by the corporation in accordance with §617.1601.

[§617.0721(3), Fla. Stat. (2020); internal numbering, punctuation, capitalization, and formatting removed; emphasis added.]

 

Therefore, the members at a membership meeting can participate electronically so long as the board has authorized it and has adopted appropriate procedures. Consultation with the association’s attorney is strongly encouraged, most especially if there will be any “live” voting at the membership meeting.

 

How members vote at an electronic membership meeting when the member attends virtually is an interesting question. Presently, there is no definitive procedure set out in the law for the member to cast their vote “live” during a zoom meeting. Rather, §617.0721(3) Fla. Stat. (2020), places the burden on the board of directors to adopt procedures in this regard.   Obviously, if your association has 400 members who all appear virtually at the membership meeting, live voting for all 400 members will prove to be logistically difficult, if not impossible. It may be far easier to have the members  vote i) in advance by proxy, limited proxy, absentee ballot as the case may be, or, ii)  if adopted by the association, vote electronically pursuant to the procedures as set out in §718.128, §719.129, or §720.317 (Fla. Stat. 2020). A hybrid approach could also be utilized where the association provides for electronic voting and proxy voting prior to the meeting and then only the remaining few voters who have yet to cast their ballot could cast their vote “live” during the meeting, subject to the requirements of §617.0721(3).

Practice tip 1: Remember, electronic voting can be used whenever a membership vote is needed, even if the meeting does not have a zoom type option for attendance so long as the association has followed the requirements to provide for electronic voting.

Practice tip 2 (For Homeowners’ Associations): If your association’s governing documents require or otherwise allow nominations from the floor of the election meeting, consider amending and removing this provision from the governing documents to clear the way for an electronic membership meeting and election.

 

IN SUMMARY

Perhaps the initial questions phrased above could be better asked as follows: Absent a declared state of emergency can a community association hold board and membership meetings exclusively via an electronic platform, such as Zoom? Unfortunately, this question has not been satisfactorily addressed by the legislature or the Florida Courts. However, in our opinion, the safer approach, and the one that will avoid the potential for a successful legal challenge by an owner, is to avoid holding meetings exclusively via Zoom when there is no declared state of emergency. Consider using the hybrid approach discussed above where both a physical location is provided along with an electronic component such as Zoom and where members are strongly encouraged to attend and participate electronically.

Can community association board meetings and membership meetings be both electronically and at a physical location for those that want to attend in person even if the business is primarily conducted electronically? The answer is “yes”, so long as certain procedural safeguards are put into place. e.g., the ability of the membership watching via Zoom to fully observe the counting of ballots.

Another approach is to consider amending the association’s bylaws to provide for electronic only board and membership meetings. However, doing so has not yet been legally tested in the Florida courts. Also, remember, too, that a homeowners’ association must provide for a physical location for its board meeting, if requested by a handicapped individual. Also, as these matters are not fully settled in the law, your association’s lawyer may have a different opinion and advise that the association may have electronic board and membership meetings without the need for a physical location.

This journey into the foray of electronic meetings demonstrates a clear need for the Florida Legislature to adopt legislation to make clear that both board and membership meetings may take place electronically without the need to also simultaneously provide for a physical location, most especially so long as the association provides a communal device on association property for not-so-tech-savvy members to observe and participate in the meeting. After all we are blessed to be living in the 21st century. Let’s take advantage of it and add a few tech savvy legislative provisions to our laws governing community associations.

It is recommended you consult with your association legal counsel on the adoption of reasonable rules to ensure your virtual/electronic meetings run smoothly while also ensuring that they are in compliance with the association’s governing documents and Florida Statutes, and for further discussion regarding amending the governing documents of the association to provide clear authorization for electronic board and membership meetings.


The Kaye Bender Rembaum Team Remains Available To You and Your Community Association

Visit KBRLegal.com for awesome free resources, including 2021 Legislation, news with Legal Morsels and Rembaum’s Association Roundup, and our Event Calendar, including upcoming free classes.

 

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3 Common Lake & Pond Management Misconceptions by SOLitude Lake Management

3 Common Lake & Pond Management Misconceptions by SOLitude Lake Management

  • Posted: Oct 17, 2021
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3 Common Lake & Pond Management Misconceptions
Trent Nelson, Aquatic Specialist at SOLitude Lake Management

 

 

As an Aquatic Specialist with more than a decade of experience, I’ve assisted hundreds of property managers with their lake and stormwater pond management needs over the years. Despite the diverse types of lakes and ponds they oversee, I’ve noticed that many clients have the same set of concerns or misconceptions about their waterbodies. These often come to light as we work together to design a freshwater management program. Let’s take an in-depth look at some of these common assumptions. 

  • Lakes and ponds are permanent fixtures in the landscape

While lakes and ponds can be long-lasting features in our communities, they are not permanent. They fill with sediment that erodes from the shoreline or flows in during rainstorms. Weed growth and decomposition may lead to the development of muck. And trash, tree branches, and other pollutants can build up over time. 

The aging of a lake or pond is a natural phenomenon, but can be highly accelerated through human activity and industry, reducing a waterbody’s life by decades. If left unmanaged over the years, your waterbody could eventually fill up until it becomes a marsh or puddle. This is a process called lake and pond succession. 

The best way to prevent this inevitable decline is through proactive, ongoing management aimed at reducing erosion, nutrient pollution, muck development, and nuisance aquatic vegetation. These benefits are two-fold. In addition to prolonging the depth and overall lifespan of your lake or pond, you’ll also help prevent problems like algae, toxic cyanobacteria growth, bad odors, murkiness, invasive species infestations, fish kills, and more.

 

 

  • Herbicides pose a danger to non-targeted plants and animals

The most eco-friendly and long-lasting lake and pond management programs lean on holistic, natural solutions, but sometimes herbicides and algaecides are necessary to set your waterbody up for success. Herbicides tend to be a point of concern for property owners, but I’ve found that once they better understand the strict scientific processes surrounding the use of herbicides, their fears are alleviated. 

Herbicides used in the lake management industry are designed to exclusively target specific weed and algae species without impacting desirable plants and animals. They do so by interfering with the unique growth mechanisms identified in nuisance species that are not found in beneficial ones. Likewise, the concurrent use of eco-friendly compounds called surfactants helps confine herbicides and algaecides to the affected area without migrating elsewhere. Historically, herbicides have been applied by licensed professional ground crews, but new industry technologies like drones are making it possible to remotely apply products with more accuracy and efficiency, particularly in areas that are hard to reach or unsafe to navigate by foot. 

All herbicides must be evaluated and registered by the Environmental Protection Agency (EPA). In addition to collaborating with scientific authorities throughout the US, the EPA also carries out bilateral cooperative programs with the World Health Organization (WHO) and many other countries around the world. Once approved, all herbicides are subject to compliance monitoring and periodic reevaluation processes to ensure lasting safety and success. 

 

  1. All freshwater management programs are the same

It’s not uncommon for a property manager to assume that the solutions used on a friend or colleague’s lake or pond will work on theirs. Unfortunately, there’s no one-size-fits-all approach to lake and pond problems because no two aquatic ecosystems are the same. 

Your waterbody’s unique makeup and the way it responds to different treatments can be dictated by many factors, including water use, location, surroundings, plant and animal presence, pollution, and weather – just to name a few. Likewise, every stakeholder has different goals and budget requirements. That’s why freshwater management programs are most effective when customized for your unique aquatic environment. 

Typically, the program design process begins by establishing a baseline of your waterbody through a visual survey of the property and comprehensive water quality testing. Your Aquatic Specialist should work with you to identify the challenges your aquatic ecosystem is facing and determine the best course of action based on your needs and limitations. And because all of these factors can change over time, these conversations should continue on a regular basis. 

 

The management of lakes and ponds is truly a science and should be treated as such. When considering a management program, look for a freshwater management firm that prioritizes getting to know you and your aquatic ecosystem before implementing any services. Seek out an Aquatic Specialist who is educated about the responsible use of herbicides and is capable of sharing that knowledge with you in a clear manner. Our lakes and ponds are valued features that our communities rely on every day. If you oversee the management of these water resources, make sure you’re investing in both the present and its future.

 


 

Trent Nelson is an Aquatic Specialist at SOLitude Lake Management, the nation’s leading freshwater management firm specializing in the management of lakes, stormwater ponds, wetlands, and fisheries. Learn more about this topic at www.solitudelakemanagement.com/knowledge

 

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Is Your Association Prepared?  Expect Supply Shortages – KBR Legal

Is Your Association Prepared? Expect Supply Shortages – KBR Legal

  • Posted: Oct 16, 2021
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Is Your Association Prepared?

Expect Supply Shortages  

There’s news once again reporting food and product supply shortages are on the horizon, if not already here, due to what can only be described as a logistics disaster. This morning’s news reported that there are thousands of shipping crates snarled in a logistical nightmare waiting to be off loaded with no relief in sight. One news source reported 250,000 crates are waiting to off load.  While no one is yelling “fire in a crowded theater,” (yet) it likely makes sense to get ahead of your association’s inventory needs. That said, hoarding is never a good idea. But, keeping extra inventory on hand may make sense until the supply chains are working correctly again.

   Sources for the following include CBS News, the Wall Street Journal and Axios:

“American families are going to face a two-pronged assault:

1. Empty shelves at toy and grocery stores
2. Inflated prices on the toys and groceries that are available

  At this very moment, there are 250,000 shipping containers stuck at sea off the east and west coasts, waiting to be unloaded and it could be months before they get to store shelves. But Biden is presiding over one of the biggest supply chain bottlenecks since WWII: [via CBS News]

  • Ships cant dock because ports are full
  • Ports are full because there aren’t enough truck drivers to take the shipping containers away
  • When truckers do arrive, the ports are poorly staffed and they can’t offload fast enough, resulting in truck drivers who used to pick up 20 loads/week, now only able to take six
  • The cost of shipping a container from China to the U.S. is now $20,000, four times higher than this time last year.

  It’s already begun: Stores across the country are already restricting supplies. Try not to have flashbacks to March 2020, but Costo and Walmart have announced they are limiting sales of toilet paper in some stores. And around the country, there are shortages of goods on shelves in Target, Costco, Home Depot, and Sears.

 Warning about your Christmas feast: Axios is reporting that food supplies will also be impacted: “Grocery stores could have limited quantities of a number of products heading into the holidays after some of the country’s biggest food manufacturers say they’re short on supply.”

The Boy Scout motto “Be Prepared” comes to mind!


 

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Condo Board Member Certification via Zoom on October 22nd

Kaye Bender Rembaum offers free certification courses for homeowners’ association and condominium association board members. Please click here for more information!

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Exciting Fountain & Aeration Deal Won’t Last! Time is running out on our amazing offer… By SOLitude

Exciting Fountain & Aeration Deal Won’t Last! Time is running out on our amazing offer… By SOLitude

  • Posted: Oct 16, 2021
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Exciting Fountain & Aeration Deal Won’t Last!

Purchase a new fountain or aeration system and receive FREE installation services!

This is not the time to neglect your lake or pond. Achieving a balanced, beautiful waterbody requires year-round attention and, in some cases, aeration. Fountains and aeration systems can provide many benefits to lakes and ponds and are one of our most recommended management solutions.

Purchase your NEW fountain or aeration system today and receive FREE installation services (up to a $700 value). Don’t wait! Offer expires on Oct 31.

PURCHASE MY FOUNTAIN OR AERATION SYSTEM

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We were outsourced Accounting and Bookkeeping resource when no one knew what outsourcing was

We were outsourced Accounting and Bookkeeping resource when no one knew what outsourcing was

  • Posted: Oct 07, 2021
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We were outsourced Accounting and Bookkeeping resource when no one knew what outsourcing was

Back in 1984 when we opened for business, our first clients turned over their bookkeeping and accounting to us to handle for them. In those days we sent information back and forth by fax and federal express: no one had heard of the internet and the only clouds we knew about were is the sky. But for Clients that could not keep their records in order, we were able to help them get out from under a bookkeeping mess and back to doing what they did best — building their business.
While our methods have changed (no more faxing and Federal Expressing), one thing has never changed; all work is done by our full-time employees that are based in our offices here in Florida. This allows us to be sure that our staff is always available to take your calls, answer your questions, and respond to inquiries from your customers and vendors.

RMS Accounting combines quality cost effective accounting and bookkeeping services with a team of tax accounting professionals to help clients make and save more money.

rms-accounting

Accounting and tax services are about more than just numbers on a page. Unlike other accounting firms, when you call us you will get a live human being not voicemail and unlike other accounting firms we will work with you on your business helping you to grow profits and cut taxes. Unlike other accounting firms we will tell you before we begin work exactly what it will cost for our help.

Our tax accounting professionals will be happy to assist you with; tax planning, tax preparation and tax representation.

Our tax accountants are EA’s (Enrolled to practice before the IRS). They know the tax laws and will make sure you don’t pay one penny more than you have to. Visit us for a free consultation with a tax accountant, who will review your tax situation, with you to determine the best course of action. The tax accountant will provide you with a free fee quotation.

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It’s the Manager’s Fault,  Or Is It? by KBR Legal

It’s the Manager’s Fault, Or Is It? by KBR Legal

  • Posted: Oct 05, 2021
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It’s the Manager’s Fault, Or Is It?

by KBR Legal

 

Few professions have more demands placed upon them than that of the Florida licensed community association manager (CAM). Depending on whom you ask, the CAM is the organizer, rules enforcer, keeper of secrets (meaning confidential and statutorily protected information not limited to the medical record of owners and attorney-client privileged information), best friend, the “bad guy” (a frequent misconstruction), and the first person in the line of fire when things go wrong; in other words, the one who takes all the blame and gets little credit when things go right.

 

When things at the association go wrong, what comment is most likely heard? “It’s the manager’s fault!” But, is it? Unless the manager failed to carry out a lawful directive from the board, breached a management contract provision, or violated a Florida statute, then in all likelihood, the manager has no culpability. CAMs are licensed by the State of Florida pursuant to Part VIII of Chapter 468 of the Florida Statutes, and there are statutory standards by which CAMs must conduct themselves.

 

Pursuant to §468.4334, Florida Statutes, “[a] community association manager or a community association management firm is deemed to act as agent on behalf of a community association as principal within the scope of authority authorized by a written contract or under this chapter. A community association manager and a community association management firm shall discharge duties performed on behalf of the association as authorized by this chapter loyally, skillfully, and diligently; dealing honestly and fairly; in good faith; with care and full disclosure to the community association; accounting for all funds; and not charging unreasonable or excessive fees.”

 

As set forth herein, statutory standards provide guidance to CAMs as to how they should conduct themselves. They must discharge their duties with skill and care and in good faith. They must act with loyalty to their association employer and deal with the association both honestly and fairly. They must provide full disclosure, which can be interpreted as both keeping the board informed of current events and providing disclosures of any conflict of interests. They must be able to account for all funds, too, which means both assessment income and expenditures; in other words, they must mind the budget.

 

Best practices for CAMs include becoming extremely familiar with the governing documents of the association (including the declaration, articles of incorporation, bylaws, and rules and regulations) and the financials of the association, walking the physical property, engaging with their team and residents, as well as providing weekly status updates to the board regarding all ongoing association business. If you are a CAM and do these things, then you have an opportunity to shine and stand head and shoulders above your peers and competition. This weekly status report is an excellent communication tool yet seems to be a rarity. CAMs should also make themselves available to owners. However, when an owner becomes offensive or insulting, the CAM should politely and firmly request that the owner communicate respectfully and in a professional manner. A CAM should always be financially transparent and should be extremely familiar with the management contract to fully understand her obligations and authority; for example, the limitation to spend association funds. Finally, the CAM should strive to keep a written record of her activities.

 

The two most obvious and biggest ways to get in trouble include committing acts of gross misconduct or gross negligence in connection with the profession or contracting on behalf of an association with any entity in which the CAM has a financial interest that is not disclosed. Disciplinary actions against a CAM fall under the purview of the Florida Department of Business and Professional Regulation (DBPR). Section 455.227, Florida Statutes, governs grounds for discipline, penalties, and enforcement.

 

For example, the following activities constitute grounds for which disciplinary actions may be taken by the DBPR (this list is not all inclusive): (i) making misleading, deceptive, or fraudulent representations in or related to the practice of the CAM’s profession; (ii) intentionally violating any rule adopted by the DBPR; (iii) being convicted or found guilty of, or entering a plea of guilty or nolo contendere (“I do not wish to contend”) to, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a CAM’s profession; (iv) having been found liable in a civil proceeding for knowingly filing a false report or complaint with the DBPR against another CAM; (v) attempting to obtain, obtaining, or renewing a license to practice a profession by bribery, by fraudulent misrepresentation, or through an error of the DBPR; (vi) failing to report to the DBPR any person who the CAM knows is in violation of the laws regulating CAMs or the rules of the DBPR; (vii) aiding, assisting, procuring, employing, or advising any unlicensed person or entity to practice a profession contrary to law; (viii) failing to perform any statutory or legal obligation; (ix) making or filing a report which the licensee knows to be false; (x) making deceptive, untrue, or fraudulent representations in or related to the practice of a profession or employing a trick or scheme in or related to the practice of a profession; and  (xi) performing professional responsibilities the licensee knows, or has reason to know, the licensee is not competent to perform.

 

The Florida Administrative Code, in Rule 61E14-2.001, also provides standards for professional conduct which are deemed automatically incorporated as duties of all CAMs into any written or oral agreement for community association management services. A CAM must adhere to the following standards:

 

  1. comply with the requirements of the governing documents by which a community association is created or operated
  2. only deposit or disburse funds received by the CAM or management firm on behalf of the association for the specific purpose or purposes designated by the board, community association management contract, or the governing documents of the association
  3. perform all community association management services required by the CAM’s contract to professional standards and to the standards established by §468.4334(1), Florida Statutes
  4. in the event of a potential conflict of interest, provide full disclosure to the association and obtain authorization or approval; and
  5. respond to, or refer to the appropriate responsible party, a notice of violation or any similar notice from an agency seeking to impose a regulatory penalty upon the association within the timeframe specified in the notice.

In addition, during the performance of community association management services pursuant to a contract with a community association, a CAM cannot withhold possession of the association’s official records or original books, records, accounts, funds, or other property of the association when requested in writing by the association to deliver the foregoing to the association upon reasonable notice. However, the CAM may retain those records necessary to complete an ending financial statement or report for up to 20 days after termination of the management contract. Additionally, a CAM cannot (i) deny or delay access to association official records to an owner, or his or her authorized representative, who is entitled to inspect and copy the association’s official records within the timeframe and under the applicable statutes governing the association; (ii) create false records or alter the official records of an association or of the CAM except in such cases where an alteration is permitted by law (e.g., the correction of minutes per direction given at a meeting at which the minutes are submitted for approval); or (iii) fail to maintain the records for a CAM, management firm, or the official records of the association as required by the applicable statutes governing the association.

 

How do you know if your association requires a licensed community association manager? Pursuant to §468.431, Florida Statutes, if the association has 10 or more units or has a budget of $100,000 or more and the person is conducting one or more of the following activities in exchange for payment, the person must be a licensed CAM:

 

  1. controlling or disbursing funds of a community association
  2. preparing budgets or other financial documents for a community association
  3. assisting in the noticing or conduct of community association meetings
  4. determining the number of days required for statutory notices
  5. determining amounts due to the association
  6. collecting amounts due to the association before the filing of a civil action
  7. calculating the votes required for a quorum or to approve a proposition or amendment
  8. completing forms related to the management of a community association that have been created by statute or by a state agency
  9. drafting meeting notices and agendas
  10. calculating and preparing certificates of assessment and estoppel certificates
  11. responding to requests for certificates of assessment and estoppel certificates
  12. negotiating monetary or performance terms of a contract subject to approval by an association
  13. drafting pre-arbitration demands
  14. coordinating or performing maintenance for real or personal property and other related routine services involved in the operation of a community association, or
  15. complying with the association’s governing documents and the requirements of law as necessary to perform such practices.

However, a person who performs clerical or ministerial functions under the direct supervision and control of a CAM or who is charged only with performing the maintenance of a community association and who does not assist in any of the management services described above is not required to be licensed.

 

So, whose fault is it when things go awry? A CAM’s role is far different than that of a rental complex manager who often has decision-making authority. The CAM does not have that same type of decision-making authority. The CAM must take direction from the board and perform pursuant to the obligations set out in the management agreement and Florida law. It is the board of directors of the community association that actually makes the decisions. So, while the uninformed might blame the CAM, you now know that the buck stops with the board of directors. If you have further questions regarding a CAM’s responsibility, then please discuss this with your association’s lawyer.

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THE SITE OF THE CHAMPLAIN TOWERS — NOT AN EASY TASK TO DECIDE WHAT TO DO  By Eric Glazer, Esq.

THE SITE OF THE CHAMPLAIN TOWERS — NOT AN EASY TASK TO DECIDE WHAT TO DO By Eric Glazer, Esq.

  • Posted: Sep 29, 2021
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THE SITE OF THE CHAMPLAIN TOWERS — NOT AN EASY TASK TO DECIDE WHAT TO DO

By Eric Glazer, Esq.

I don’t envy Judge Michael Hanzman, the judge who is assigned to decide the fate of the property where The Champlain Towers South Condominium once stood. The question of what to do at this sacred site is not easy. Some families want no re-development and only a memorial. The City of Surfside needs to see residential redevelopment at that site or lose an incredible about of annual real estate tax dollars.

At present, there is an offer to buy the land for $120 million dollars. But that offer doesn’t promise to even put up a memorable plaque marking the spot of the tragedy. Suggestions of rebuilding on the site and forming a memorable tribute somewhere else in Surfside have also not progressed.

According to The Daily Business Review, Hanzman said he is sympathetic to those who want a memorial, but his job is to get the most money for all families of those who died and the approximately 35 families who survived but lost their homes. He has scheduled the auction for late February or early March and said that date is firm because many of the survivors need money to buy new homes.

Judge Hanzman is right, his job is to get the most money for the victims. And, while 120 million sounds like a lot of money, it isn’t when we consider the fact that there were 140 units. There’s another 50 million or so in insurance and this still isn’t even close to being able to compensate the victims and their families all that they are rightfully entitled to.

Then comes an even harder part. How does the court decide who gets what from the limited pot? Does the court allow the family of a 30 year victim to collect more that the family of an 80 year old victim? What about people who survived but were injured? Do they get anything? Of course, everyone needs to get reimbursed for the loss of their unit as well. These are Solomon like decisions the court will ultimately be faced with and they are not easy tasks. Of course, whatever decisions are made there will be people that agree with the court’s conclusions and method of pay-out and those who do not. There is simply no way to make everyone whole financially. And in the end……it’s only money anyway.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

To watch the entire discussion, please click here.

 

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