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CAN I FLY MY FLAG? By Eric Glazer, Esq.

CAN I FLY MY FLAG? By Eric Glazer, Esq.

  • Posted: Jul 03, 2020
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CAN I FLY MY FLAG? By Eric Glazer, Esq.

Published June 29, 2020 Eric Glazer 

 

It’s July 4th.  Our country’s birthday.

USA flags will be flying everywhere, even in our community associations and even if the Board in that association says take it down.  With the political upheaval sweeping the country, this year I anticipate receiving complaint about owners or renters displaying flags that are not American flags, but flags that support a specific cause.    The question is…can they do it.  The answer is…not if the Board says they can’t.

The 4th of July – INDEPENDENCE DAY! It’s a day when we all should celebrate the birth of our nation – a nation that was built on the foundation of our CONSTITUTION and the statement: “IN GOD WE TRUST”! It’s a day when we should proudly display our nation’s flag: OL’ GLORY!

Our nation has a lot to be proud of and I think it’s high time to finally teach our kids our proud history. Our kids should know how our forefathers fought for independence and what it all meant. Especially Ivy League students should know who fought in the War of Independence. Aren’t these students supposed to be the “future of our country?”

 

The Freedom to Display The American Flag Act of 2005 states:

A condominium association, cooperative association, or residential real estate management association may not adopt or enforce any policy, or enter into any agreement, that would restrict or prevent a member of the association from displaying the flag of the United States on residential property within the association with respect to which such member has a separate ownership interest or a right to exclusive possession or use.

Many proud owners of properties within community associations have proudly displayed “OL’ GLORY” – and paid a heavy price for it in many cases. Lots of lawsuits have been fought over flying “Ol’ Glory!” I can assure you, if you would have all the legal fees wasted here in Florida on these lawsuits, you would be a multi-millionaire.

After the long lawsuit fought by George Andres – nicknamed the Jupiter flagman – we were able to add provisions into the community association statutes (FS 718.113(4)  + FS 720.304(2) that allows owners to proudly fly our national flag (and some others, see statutes). But, what’s new? Some association board members and management companies still haven’t gotten the message.

But this is the 4th of July and we celebrate the BIRTH OF OUR GREAT NATION.

Let’s show our pride in our great nation and proudly fly “OL’ GLORY”!

 

This federal law allows the association to make reasonable restrictions.  Florida codified its own law and states:

For condominiums:

Any unit owner may display one portable, removable United States flag in a respectful way and, on Armed Forces Day, Memorial Day, Flag Day, Independence Day, and Veterans Day, may display in a respectful way portable, removable official flags, not larger than 41/2 feet by 6 feet, that represent the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, regardless of any declaration rules or requirements dealing with flags or decorations.

 

For homeowner associations:

Any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than 41/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.

(b) Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. The homeowner may further display in a respectful manner from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, one official United States flag, not larger than 41/2 feet by 6 feet, and may additionally display one official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. Such additional flag must be equal in size to or smaller than the United States flag. The flagpole and display are subject to all building codes, zoning setbacks, and other applicable governmental regulations, including, but not limited to, noise and lighting ordinances in the county or municipality in which the flagpole is erected and all setback and locational criteria contained in the governing documents.

 

 

An HOA board that did not bother to check out state laws would quickly find itself in a losing position if it tried to enforce a covenant restricting flagpoles – especially where the flagpole was well-maintained and the display was respectable in accordance with the

U.S. Flag Code.

So when it comes to enforcing covenant restrictions – real or imagined – against homeowners displaying flags or building flagpoles, boards should look before they leap.

 

So, the law is clear.  You only have a right to display the flag of the USA.  The stars and stripes.  That’s it.  You have no right to display any other type of flag and your association may require you to take it down.

It’s more important than ever to display the flag.  Do so proudly.

FL Statute 720.304(b)

specifically states: “Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement.”

 

Glazer & Sachs, P.A.

Florida Homeowners’ Association and Condominium Law Attorneys

Thank you for your interest in Glazer and Sachs, P.A.  Our six attorney firm exclusively practices community association law.  Visit our website located at www.condo-laws.com and be sure to click on our “Legal Beat” newsletter where you can read our association law newsletters that we have been publishing for the past two decades.  While there, you can also learn more about the firm’s attorneys, see some of our TV appearances and read articles from around the country wherein attorneys at this firm have been asked to comment about association legal issues.

 

 

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FORECLOSURES AND WHY OUR CONDOS AND HOAs MAY BE IN TROUBLE

FORECLOSURES AND WHY OUR CONDOS AND HOAs MAY BE IN TROUBLE

  • Posted: Jun 22, 2020
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FORECLOSURES AND WHY OUR CONDOS AND HOAs MAY BE IN TROUBLE

By Eric Glazer, Esq.

So here is what you need to know in a nutshell:

  1. Mortgage defaults are soaring.  In fact, homeowners stopped paying mortgages in record numbers in April.  It was the largest one month increase ever recorded.
  2. Under Florida law, that spells financial disaster for our condos and HOAs.

Keep this in mind as you read this.  Florida law protects the banks.  When a bank forecloses on a condo unit or a home, several things normally happen:

  1. The owner is also not paying the condo or HOA assessments;
  2. The bank foreclosure takes many months and even years;
  3. Even when the bank finally finishes their foreclosure and owns the home or unit, they owe the condo or HOA very little and the association just lost a lot of money.

So why does Florida law allow the condos and HOAs to get slaughtered?  Under Florida law, if the bank winds up owning the home or unit — even if the association has not been paid in years – the bank only owes the association the lesser of one year of assessments or 1% of the mortgage debt.  In sum, it is usually a fraction of what is owed to the association.

 

So why is the law written this way?  Clearly to protect the banks.  The theory is….. if we pass a law and make banks responsible for payment to the association for all of the unpaid dues of the owner they just foreclosed on, banks simply will not lend money to people who want to buy in a condo or HOA.  Maybe that’s true.

If however such a law did exist, all it would mean that banks would have to protect themselves a little more.  They already protect themselves when it comes to real estate taxes.  You know how they make you escrow a year of real estate taxes in advance?  That’s done because real estate taxes have a greater priority than mortgages do.  If the taxes don’t get paid, the county can wipe out the mortgage and the bank would be owned nothing.  So in response, the bank makes you pay the real estate taxes in advance so they’re covered.

Condo and HOA assessments can be treated the same way by the banks if it were necessary but, as you can see, the politicians make sure they the money owed to the county is given SUPER PRIORITY over all other obligations on the property.  Taxes are first in line.  Their money is guaranteed. To the contrary, they don’t care about the money owed to the associations.  I the law were changed, the bank can easily make a borrower escrow a year of assessments if they want to buy that condo or home  so just in case all goes bad, the association is covered. Maybe they can charge an extra quarter of a point in interest as well.  At least  people on fixed incomes won’t have to cover the delinquencies of their neighbors.

So now you know why you get the short end of the stick when foreclosures increase and the economy tanks.  Next week we will tell you what to do about it.

Suffice to say……..there may be a rough road ahead.

 

 

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New Guidelines for Community Associations – Stricter Disciplinary Civil Penalties of Noncompliance Now In Effect

New Guidelines for Community Associations – Stricter Disciplinary Civil Penalties of Noncompliance Now In Effect

  • Posted: Jun 22, 2020
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Florida’s Department of Business and Professional Regulation Issues New Guidelines for Community Associations

Stricter Disciplinary Civil Penalties of Noncompliance Now In Effect

 

Board members and property managers of condominium communities need to be aware that the State of Florida’s Department of Business and Professional Regulation issued revisions to rules pertaining to violations and penalties, 61B-21, Condominium Resolution Guidelines for Unit Owner Controlled Associations,

The disciplinary guidelines detail minor violations and penalty guidelines within Chapter 718, F.S.  If a violation is deemed minor, the division will send a Notice of Noncompliance to the association. A community association’s failure to timely comply with the Notice of Noncompliance may result in sanctions, including civil monetary damages and enforcement. For the violations not deemed minor by the division, there is no longer a notice/warning requirement and, if found guilty of the violation, the Association may be fined pursuant to the new standards in the rule.   Rulemaking Authority 120.695, 718.501(1)(d)6., (f) FS. Law Implemented 718.501(1)(d)6. FS. History–New 6-4-98, Amended 10-23-18. 

 These disciplinary guidelines were enacted to inform affected parties about the range of penalties which may be imposed for violations, pursuant to subsection 61B-21.003 detailing penalty guidelines in the following categories: Accounting Records, Assessing, Board, Budgets, Commingle, Common Expenses, Conflict of Interest, Converter Reserves, Debit Card, Elections, Estoppel Certificate, Final Order, Fiduciary Duty, Investigation, Property, Records, Reporting, Reserves, Special Assessment and Website.

 

“It is important for community associations and the governing boards to understand the consequences and potential monetary ramifications they will face if they do not abide by these new guidelines,” said Frank J Mari, Director of State of Florida Property Management Association. “Ignoring or not fully compiling with the Florida Department of Business and Professional Regulation’s rules, as well as Chapter 718, Florida Statutes, in a timely manner can have a detrimental effect on an association’s financial standing.”

If an association fails to comply with a Notice of Noncompliance, a civil penalty will be imposed between $5 and $10, per unit, for each minor violation. The penalty will be assessed beginning with the middle of the specified range and adjusted either up or down based upon any aggravating or accepted mitigating circumstances. The minimum total penalty to be assessed shall be calculated according to these guidelines or $500, whichever amount is greater. In no event shall a penalty for a minor violation exceed $2,500, the statutory maximum for a single minor violation. For all other violations (those not deemed to be minor), the penalty imposed is between $10-$30 per unit for each violation and the statutory maximum is $5,000.00. For both types of violations, multiple counts of the violated provision or a combination of the listed violations are added together to determine an overall total penalty.

 

SFPMA – State of Florida Property Management Association is an Organization in Florida that Advocates Educates for Members in the Condo, HOA and Property Management Industry. On behalf of our Industry Members our goal is to keep the industry informed and Provide information for their protection. We have on our Website sfpma.com resources where Board Members, Property Managers can Learn, Network, Engage and Find Top Companies that work in the industry – Search for companies on our Members Directory

Legal Sponsors: KBRLegal.com – Pompano Beach and Palm Beach offices. are the Legal Sponsors for our Association we value the important information and articles they provide for our industry.

 

 

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Stay Ahead of the Curve: Lessons in Technology Learned from Covid-19 by Jeffrey Rembaum, Esq. Kaye Bender Rembaum

Stay Ahead of the Curve: Lessons in Technology Learned from Covid-19 by Jeffrey Rembaum, Esq. Kaye Bender Rembaum

  • Posted: Jun 04, 2020
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Stay Ahead of the Curve:  Lessons in Technology Learned from Covid-19

by Jeffrey Rembaum, Esq.   Kaye Bender Rembaum

 

The statutory emergency powers granted to community associations as a result of the Covid-19 State of Emergency proved to be a valuable resource for the orderly operations of Florida’s community associations. Many associations had to make significant changes to how they conducted the business of their association. For example, holding board meetings via “Zoom” and “GotoWebinar” became invaluable. But, when the State of Emergency is over can annual meetings and board meetings continue to take place on the internet? Sure they can, subject to the important considerations explained below. In addition, what other technologies can be utilized by the board?

 

 In fact, at the present time there are three statutory grants of technology that an association can utilize to make conducting the business of the association easier on a regular basis. They include, holding meetings electronically, voting electronically, and using email as an official means of communication to the members rather than the U.S. Postal Service. Electronic board meetings allow the board to continue conducting the business of the association without putting themselves or others in harm’s way. But even more than that, by attending electronically think of all of the gas that is saved since no one has to drive to the meeting. More than that, think of the extra time spent not driving or walking to the meeting and how it could be used as family quality time or just to relax.

 

However, if the board chooses to use video conferencing, it is important to remember that the board must comply with the statutory provisions regarding board meetings. The members must receive notice of the meeting pursuant to the bylaws of the association, and in any event, at least 48 hours in advance of the meeting. Additionally, condominium association members must have the right to speak to all designated agenda items and HOA members also get the additional right to speak on any item discussed by the board (this is because from a strict statutory interpretation condominium association boards are only supposed to address what is set out on the agenda, while such restriction does not apply to HOA boards). Remember, there is no exception to the meeting notice requirements and the need to provide opportunity for member comment. Therefore, any video conferencing software the board utilizes must allow members to virtually attend the meeting and have the opportunity to speak.

 

The second technology that associations can utilize to make life easier is electronic voting. Florida law allows condominiums, homeowners associations, and cooperatives to conduct elections and other owner votes electronically. When an association board adopts electronic voting, each member of the association must opt in, in writing, and can then vote safely from the comfort of their own home. Imagine all of the time saved by punching a computer button to get the tally, rather than counting by hand, in some instances over 1,000 votes!

 

To adopt electronic voting, the Board must first adopt a resolution authorizing an online voting system. The board resolution must provide that members will receive notice of the opportunity to vote online and must establish reasonable procedures and deadlines for members to consent, in writing, to online voting, and procedures for members to opt out of online voting. Once the board has approved electronic voting, the board must select an online voting system that complies with the requirements of Florida law. The online voting system must be able to do the following: (1) authenticate the owner’s identity, (2) authenticate the validity of each electronic vote to ensure that the vote is not changed during transmission, (3) transmit a receipt to each owner who casts an electronic vote, (4) be able to separate any authentication or identifying information from the ballot when voting must be done by secret ballot, and (5) be able to store and keep electronic votes accessible for recount, inspection, and review purposes.

 

Please take note that the board cannot force owners to vote electronically. Thus, a necessary step is to obtain each member’s written consent to participate in electronic voting. If an owner does not consent or opts out of electronic voting, then the board must allow that owner to paper vote.

 

The third technology an association can utilize which saves money, paper and time, is using electronic notices for official association communications. In other words, give up postage stamps in favor of using e-mail. Generally, associations are required to send official notices via mail or hand delivery. However, the association may choose to send notice via e-mail but only if an owner has provided their written consent to receive their notices electronically.

 

E-mails used for official association communications can only be sent to those owners who consent, in writing, to receive their official notices by electronic transmission. The written consent must specifically authorize the association to transmit notice electronically. An owner who has consented to electronic notice may opt out at any time. The association must retain a roster of the e-mail addresses and the written consents of owners as an official record of the association. The member is responsible to ensure the association’s emails are not blocked or categorized as spam. Failure to receive an email due to a member’s inability to receive the email will not be a valid reason for objecting. Budget adoption notices, annual meeting notices, election notices, board meeting notices and so much more can be provided via email.

 

  Over the last several months, many associations have had to learn how to utilize technology to conduct the business of their association during the Covid-19 pandemic. Some have done so correctly and likely others have not. Thus, in utilizing any of the technology discussed in this article, an important step is to consult with your association’s attorney to ensure proper compliance with all the statutory requirements. Let us also turn a negative into a positive by continuing to use technology to assist the association with smooth operation. Who knows, perhaps one day, there will be a way for members to virtually enjoy the amenities, too. Until then, you’ll find me at the pool deck.

 

 

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 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.

 

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WEBINAR: Association Operations During COVID-19 – A Castle Group and Kaye Bender Rembaum, P.L. Webinar

WEBINAR: Association Operations During COVID-19 – A Castle Group and Kaye Bender Rembaum, P.L. Webinar

  • Posted: Jun 02, 2020
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Association Operations During COVID-19 – A Castle Group and Kaye Bender Rembaum, P.L. Webinar

Date/Time
Date(s) – JUNE 4th, 2020
12:00 pm – 1:00 pm

Location
Pompano Beach Office

REGISTER HERE

Castle Group invites you to join episode 4 of Association Operations During COVID-19 with a focus on opening community amenities and more. Panelists include Craig Vaughan, Castle Group, President and Michael S. Bender & Jeffrey A. Rembaum, Kaye Bender Rembaum, P.L. – Board Certified Attorneys in Condominium and Planned Development Law.

Castle Group invites you to join episode 4 of Association Operations During COVID-19 with a focus on opening community amenities and more. Panelists include Craig Vaughan, Castle Group, President, and Michael S. Bender & Jeffrey A. Rembaum, Kaye Bender Rembaum, P.L. – Board Certified Attorneys in Condominium and Planned Development Law.

Register to attend by https://castlegroup.zoom.us/webinar/register/WN_lInnKQ_6QtS3C3qouWz9XA.

 

 

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WE ARE CONTINUING TO CERTIFY HUNDREDS OF YOU! by Eric Glazer

WE ARE CONTINUING TO CERTIFY HUNDREDS OF YOU! by Eric Glazer

  • Posted: Jun 01, 2020
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WE ARE CONTINUING TO CERTIFY HUNDREDS OF YOU!

Just because we’re stuck in our homes doesn’t mean we can’t get together —- and learn together — remotely – in a safe and fun way.  NO EXCUSES.
Florida law allows the Board Certification class to be taught via a video conference and that’s exactly what we’re doing.
Turn off the news for a few hours and let’s try to have some fun instead. 
 

We have ANOTHER class scheduled:

NEXT CLASS – JUNE 11th, at 6:00 P.M.

If you want to sign up, just provide us with an an e-mail address.  I will then send you a link that you need to click on to start the live seminar.  Make sure to go to: GoTo Meeting
in advance to simply download the program.
Like always……IT’S FREE.
So let’s do this together!

If you want to register, send an e-mail to:

lydia@condo-laws.com

 

Just say you are registering for the class. You will then get a copy of the link to click on before the seminar starts.
After the on-line seminar, you will be e-mailed your certificate and materials.
Let’s make the best of the cards we were dealt.  Let’s get together and do something fun and useful.
In the mean time, our firm and all of the sponsors of the Condo Craze and HOAs radio show wish all of you and your families nothing but good health and good spirits.  We will all get through this in time.
Hoping to see you (on my computer).
Sincerely,
Eric Glazer
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HOT TO GET THE VOTE- There are two methods of obtaining the votes. by Kaye Bender Rembaum

HOT TO GET THE VOTE- There are two methods of obtaining the votes. by Kaye Bender Rembaum

  • Posted: May 29, 2020
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HOW TO GET THE VOTE – There are two methods of obtaining the votes.

by Kaye Bender Rembaum

Your association’s board has worked for six months to amend and restate the association’s governing documents, including the declaration, articles of incorporation, bylaws, and even the rules and regulations. The board has met with the association’s lawyer on several occasions, reviewed and provided comments on multiple drafts, and even arranged for multiple meetings with the membership to solicit comments and generate enthusiasm. There are two methods of obtaining the votes. The first is to notice a meeting of the members and use proxies for those who cannot attend. The other is to use, the often neglected, but still effective, written consent in lieu of a meeting process.

The time is finally come – the notice package to be sent to the members is in the mail. A week goes by, and very few proxies are returned. Worse still, on the night of the membership meeting, where it is hoped that the amended and restated governing documents will be approved, only several owners personally attend. Needless to say, not only are there an insufficient number of votes, but there isn’t even a quorum. What is the board to do?

All is not lost, and there is still plenty of time to solicit the necessary member votes so long as the meeting for which the proxies were intended is not concluded. Once the membership meeting is concluded, any and all proxies die an immediate death! But, if the membership meeting is continued to a “time, date, and place certain” then, all of the proxies continue to live for 90 days from the date of the meeting for which they were initially intended.

 

If a quorum is attained, but not the number of necessary votes, then, any member in attendance can make a motion to suspend the meeting to a time, date, and place certain, so long as the meeting is resumed within 90 days of the date of the initial meeting. Then, the motion should be seconded. A vote of those in attendance, in person or by proxy, should follow such that the majority cast their vote in favor of the continuance. If neither a quorum is attained, nor the number of necessary votes, then the one item of business that can occur, even without a quorum, is a motion to continue the meeting to a “time, date, and place certain.” Again, the motion should be seconded and a vote of those in attendance, in person or by proxy, obtained.

This “continuance” process can be used as many times as necessary, so long as 90 days from the date of the initial meeting have not expired. Once the 91st day is reached, then all of the proxies are as good as dead. Because the meeting is continued, there is no need to re-notice the meeting each time it is reconvened. However, minutes should be taken so that there is an accurate record.

When describing the continued meeting in the minutes, the word “adjourned” could be interpreted to mean that the initial meeting concluded or it could be interpreted to mean that the meeting was continued, therefore it is advisable to not use the word “adjourned” in the minutes to reflect that the meeting was continued. If the meeting is continued, then use the word “continued.” This will avoid any confusion whatsoever.

Remember, too, that a “general proxy” allows the proxy holder to vote as they so choose, while a “limited proxy” directs the proxy holder to vote as the giver of the proxy instructs.

Utilization of the written consent in lieu of a meeting process will fully avoid the need to have the membership meeting but will still require that the necessary votes are obtained within 90 days. The written consent in lieu of a meeting process is described in Chapter 617 of the Florida Statutes, more commonly known as the “Florida Not For Profit Corporation Act,” and not Chapter 720, Florida Statutes, more commonly known as the “Homeowners’ Association Act.”

Unless otherwise provided in the articles of incorporation, an action required or permitted by the Florida Not For Profit Corporation Act to be taken at a meeting of members may be taken without a meeting, without prior notice, and without a vote if the action is taken by the members having at least the minimum number of votes necessary to authorize the action.

To be effective, the action must be evidenced by one or more written consents describing the action taken, dated, and signed by approving members having the requisite number of votes and entitled to vote on such action, and delivered to the association.

Written consent to take the action referred to in the consent is not effective unless the consent is signed by members having the requisite number of votes necessary to authorize the action within 90 days after the date of the earliest dated consent. Importantly, within 30 days after obtaining authorization by written consent, notice must be given to those members who are entitled to vote on the action but who have not consented in writing. The notice must fairly summarize the material features of the authorized action. Remember, too, that once the necessary written consents are obtained, there should be official recognition of such approval by the board.

Both the proxies and written consents constitute official records of the association and therefore should be stored with the official records of the association.

 

 

 

 

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From One Disaster to the Next / Hurricane Season Starts June 1

From One Disaster to the Next / Hurricane Season Starts June 1

  • Posted: May 09, 2020
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From One Disaster to the Next

Hurricane Season Starts June 1

 

    If the effects of the Covid-19 virus were not enough, June 1st begins Florida’s unenviable hurricane season. Never has it been more important to board members and managers to understand the emergency powers approved by the legislature and codified into Florida Statutes in Chapters 718, 719 and 720 for use during a declared “state of emergency.”  Many associations have already utilized these powers in their efforts to curb the Covid-19 virus from spreading.  If you are not yet familiar with these powers, well, you need to become learned before disaster strikes.
    The statutorily required pre-requisite to utilizing the legislative emergency powers is that the Governor of the State of Florida has declared a “state of emergency”.  Importantly, when exercising emergency powers, there should be a rational relationship between the action undertaken and the disaster itself.  For example, an emergency special assessment needed to fix the condominium roof damaged by a hurricane during a state of emergency makes good sense. However, just because there was a hurricane and a state of emergency declared, does not mean the emergency powers can be used to levy a special assessment to build a new gazebo, most especially when there was never a gazebo before.
  The Covid-19 situation illustrates to many seasoned community association lawyers that the emergency powers granted by the legislature were drafted for use in response to, and in preparation for, natural disasters. More specifically, “in response to damage caused by an event for which a state of emergency is declared.”  Suffice it to say, use of the emergency powers to help contain a virus epidemic was likely not contemplated. Nevertheless, circumstances warranted that the emergency powers be utilized during the Covid-19 crisis for which a state of emergency was indeed declared. Likely, as a result of the Covid-19 virus, the community association emergency powers granted by the Florida legislature will be tweaked by the legislature in its next session to provide for better applicability to an ever-evolving world where states of disaster are not limited to weather events alone.
    The specific emergency powers legislation can be found in section 718.1265 Florida Statutes for condominium associations, section 720.316 Florida Statutes for homeowners’ associations and section 719.128 Florida Statutes for cooperative associations.  While each are very similar, there are a few subtle differences that go beyond the scope of this article.  Also, it should be noted that an association can amend its governing documents to prohibit a board member’s use of the statutory emergency powers.  Perhaps, one justifiable reason to do so would be if the membership approves its own version of emergency powers which most obviously should be discussed with the association’s legal counsel before considering to do so.
    A few of the emergency powers that are common to all of Florida’s community associations, unless otherwise provided, include:
  1. Conduct board meetings and membership meetings with notice given as is practicable under the circumstances.
  2. Cancel and reschedule any association meeting.
  3. Name as ‘assistant officers’ persons who are not directors, which assistant officers shall have the same authority as the executive officers to whom they are assistants during the state of emergency to accommodate the incapacity or unavailability of any officer of the association.
  4. Relocate the association’s principal office or designate alternative principal offices.
  5. Enter into agreements with local counties and municipalities to assist counties and municipalities with debris removal.
  6. Implement a disaster plan before or immediately following the event for which a state of emergency is declared which may include, but is not limited to, shutting down or off elevators; electricity; water, sewer, or security systems; or air conditioners.
  7. Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine any portion of the property unavailable for entry or occupancy by unit owners, family members, tenants, guests, agents, or invitees to protect the health, safety, or welfare of such persons.
  8. Require the evacuation in the event of a mandatory evacuation order.
  9. Based upon advice of emergency management officials or upon the advice of licensed professionals retained by the board, determine whether the property can be safely inhabited or occupied.
  10. As to condominiums, mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including, but not limited to, mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the condominium property, even if the unit owner is obligated by the declaration or law to insure or replace those fixtures and to remove personal property from a unit.
  11. As to condominiums, contract, on behalf of any unit owner or owners, for items or services for which the owners are otherwise individually responsible, but which are necessary to prevent further damage to the condominium property. In such event, the unit owner or owners on whose behalf the board has contracted are responsible for reimbursing the association for the actual costs of the items or services, and the association may use its lien authority provided by s. 718.116 to enforce collection of the charges. Without limitation, such items or services may include the drying of units, the boarding of broken windows or doors, and the replacement of damaged air conditioners or air handlers to provide climate control in the units or other portions of the property.
  12. As to homeowners’ associations,  mitigate further damage, including taking action to contract for the removal of debris and to prevent or mitigate the spread of fungus, including mold or mildew, by removing and disposing of wet drywall, insulation, carpet, cabinetry, or other fixtures on or within the association property.
  13. Regardless of any provision to the contrary and even if such authority does not specifically appear in the declaration of condominium, articles, or bylaws of the association, levy special assessments without a vote of the owners.
  14. Without unit owners’ approval, borrow money and pledge association assets as collateral to fund emergency repairs and carry out the duties of the association when operating funds are insufficient.

These emergency powers are limited to that time reasonably necessary to protect the health, safety, and welfare of the association and the owners and the owners’ family members, tenants, guests, agents, or invitees and shall be reasonably necessary to mitigate further damage and make emergency repairs.

 

Please be sure to review the legislation that is specifically applicable to your type of association, be it a condominium, cooperative or homeowners’ association, as the above powers were presented for purposes of this article.

Prior to taking any action, consultation with the association’s attorney is an absolute must as this article is intended to provide useful information for consideration and not specific legal advice.  Stay safe!

(Reprinted with permission from the May 2020 edition of the Florida Community Association Journal and as written by attorney Jeffrey Rembaum)

 

 

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There will be a new normal. Boards cannot simply flip a switch to bring them back to Jan. 2020 operations. by Donna DiMaggio of Becker

There will be a new normal. Boards cannot simply flip a switch to bring them back to Jan. 2020 operations. by Donna DiMaggio of Becker

  • Posted: May 08, 2020
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There will be a new normal. Boards cannot simply flip a switch to bring them back to Jan. 2020 operations.

by Donna DiMaggio Esq. of Becker

 

There is no reason that permanent sanitizer stations shouldn’t remain in place in high traffic areas including near front desks, in elevators and near access screens.

The days of having dozens of lounge chairs at the pool and tightly packed gyms should be over.

Boards may start using a reservation system for certain amenities to better enforce social distancing.

Boards who have been lax in the past about prohibiting dual usage by unit owners and their tenants should tighten up those restrictions.

Unauthorized short-term rental activity and guest usage should also be scrutinized to reduce density in the common areas.

The days of having an open door policy in the Association office should likely cease.

Some residents like to congregate in the association office for a variety of reasons but that activity was not terribly helpful in ordinary times let alone now.

Inquiries can be handled via email, phone or by attending a meeting.

Digitizing association records to conduct online document inspections as well as holding online votes will not only maximize your efficiencies but can reduce the disputes which erupt with traditional voting, inspection and meeting protocols.

 

Here’s what you need to know to live through the coronavirus crisis in South Florida

South Florida continues to be under movement restrictions due to efforts to control the spread of the new coronavirus. Although the state began on May 4 to open in phases, South Florida will have to wait longer due to higher rates of infections and deaths. Here are the key things you need to know about the situation.

Working and getting out

  • BUSINESS THAT MUST REMAIN CLOSED: Non-essential businesses in Broward, Palm Beach and Miami-Dade counties remain under shutdown orders. The statewide shutdown order is being lifted in phases, but excludes South Florida. We put together a complete list of businesses considered “essential” that may remain open.
  • FACE MASKS: Broward, Palm Beach and Miami-Dade counties have all ordered face masks to be worn by customers and employees in grocery stores, pharmacies and other retail stores that are allowed to be open during the shutdown orders. Businesses are expected to enforce the rules and could face penalties if they do not.
  • CURFEWS: Although some cities have started to lift curfews imposed in March, several remain in effect with exceptions being made only for those traveling to and from work or for essential needs. Broward County: Hallandale Beach between 11 p.m. and 5 a.m. Palm Beach County: Town of Palm Beach between 9 p.m. and 6 a.m. Miami-Dade County: Key Biscayne between 10 p.m. and 5 a.m.; Miami Beach between midnight and 5 a.m.; North Miami Beach between 10 p.m. and 5 a.m.; and the city of Miami between 10 p.m. and 5 a.m.
  • STAY-HOME ORDERS: South Florida’s three counties technically remain under stay-home orders except for essential travel. But some outdoor activities are being allowed to resume. See “recreational activities” below for more information.
  • CANCELED EVENTS: With an order prohibiting public gatherings of 10 or more people, nearly all events have been canceled or postponed.
  • RELIGIOUS SERVICES: Although religious services are exempt from the state’s order closing businesses, the Archdiocese of Miami and the Diocese of Palm Beach suspended Masses and liturgical events. The Miami archdiocese also shut down various drive-through confessionals that some parishes started offering. The Chabad Of South Broward advised that most minyanim are not currently meeting. Many local churches and houses of worship have transitioned to online prayers, meditation posts and services. Check with your local church or religious provider for updates.
  • TRANSPORTATION: Brightline, the higher-speed rail between Miami, Fort Lauderdale and West Palm Beach, suspended service until further notice beginning March 26. Tri-Rail announced it would trim back its schedule but suspend fares on all its trains beginning March 28. Several airlines including American, United and JetBlue have cut back the number of flights between South Florida and New York City-area airports. Spirit Airlines, based in Miramar, completely suspended flights to the area. Most major airlines are now requiring masks to be worn at all times in terminals and airplanes.

Recreational activities

  • PARKS: County parks in South Florida reopened on April 30 with social distancing rules in place, along with bans on groups of 10 or more. Most cities also opened their parks with some exceptions. See the complete city-by-city list of park openings here.
  • STATE PARKS: State parks around Florida started to reopen May 4 in phases, with the exception of those in South Florida including Hugh Taylor Birch State Park in Fort Lauderdale, Dr. Von D. Mizell-Eula Johnson State Park in Dania Beach and Oleta River State Park in North Miami Beach.
  • BEACHES: All beaches in Broward, Palm Beach and Miami-Dade counties remain closed, even to casual strollers. Beaches in other parts of the state have started to reopen with restrictions.
  • BOATING: South Florida’s counties began opening boat ramps and marinas on April 29. Congregations on sand bars remain prohibited.
  • GOLF COURSES: South Florida’s counties as well as most cities have now allowed golf courses to open with restrictions on group size and use of golf carts.
  • GYMS, THEATERS, ARCADES: All are included in the business closure orders that were issued in South Florida’s three counties and are being enforced by cities. Concert venues, auditoriums, movie theaters and playhouses are also closed.
  • CASINOS: South Florida casinos — including Seminole Hard Rock Hotel and Casino in Hollywood, the Seminole Classic in Hollywood, just south of the Hard Rock, the Seminole Casino in Coconut Creek and the Miccosukee Resort & Gaming casino — are closed until further notice.
  • FLORIDA KEYS: The Monroe County Sheriff’s Office announced Monday that the Florida Keys are closed to all tourists and visitors because of the coronavirus. Although some beaches have begun to reopen, the Keys are closed to visitors.
  • CRUISES: The three major cruise lines that sail out of South Florida have suspended service at least into the summer.

 

Schools and colleges

  • PRE-K AND K-12 SCHOOLS: Schools across Florida are closed for the remainder of the school year. Classes and graduations are being held virtually.
  • COLLEGES: Public and private colleges and universities have closed or moved to online classes. On-campus events are part of the state-wide ban on large gatherings. Graduation ceremonies for state colleges have also been canceled.

Eating and shopping

  • BARS, RESTAURANTS AND NIGHTCLUBS: Bars and nightclubs are closed, and restaurants are closed to dining. But many eateries are open for takeout and delivery. We have been compiling a list of Broward, Palm Beach and Miami-Dade eateries offering takeout and delivery. All food-delivery apps are waiving delivery fees until further notice.
  • GROCERY STORES: Supermarket across South Florida are changing their hours as well as designating certain days and times exclusively for senior citizens or people at higher risk of coronovirus. In addition, all three South Florida counties are requiring customers and employees to wear face masks at all times in the stores.
  • FREE MEALS FOR STUDENTS: Public schools in Broward, Palm Beach and Miami-Dade counties are providing free meals at selected locations on days that school would have otherwise been in session. Broward County: Breakfast is available 8-10 a.m. and lunch 11 a.m. to 1 p.m. at select schools. Palm Beach County: 35 schools will distribute free meals this week Monday through Thursday, and can receive Friday’s meals on Monday, Wednesday and Friday for two meals each day. Meals and are free to anyone under 18 years of age regardless of financial need. Miami-Dade: Students and families may pick up hot meals to go, both breakfast and lunch, between 9:00 a.m. and 12:30 p.m.

Help with finances

  • HOW TO GET FINANCIAL ASSISTANCE: We won’t lose our homes because of the coronavirus crisis. Our power won’t be shut off. And we’re not going to go hungry. Financial services companies, nonprofit relief programs, utilities and government assistance agencies are offering ways to help consumers get through layoffs, business interruptions and self quarantines.
  • HELP FOR RESTAURANT WORKERS: Restaurant workers have been hit hard by the coronavirus crises, particularly here in South Florida, a resort region and tourist destination known globally for being a foodie paradise. But there are efforts here to ease the burden facing kitchen staff, servers, bartenders and others.

 

Staying safe

  • WHAT TO DO IF YOU’RE SICK: If you wake up with a cough or fever and are worried you have coronavirus, you have several options. In Florida, as in other states, hospitals and doctors have been primed on how to screen patients who come into their offices or the Emergency Department with symptoms. Only people who have severe symptoms should go to a hospital. If your symptoms are mild, call your doctor or the health department to get an appointment for a test. Some local test sites can now get results in up to 15 minutes with rapid tests but will turn away people without appointments.
  • WHERE TO FIND TESTING SITES: Drive-thru testing sites are being set up at locations around South Florida. Testing may be limited to individuals who meet the current Centers for Disease Control and Prevention guidelines: Older adults and people who have severe underlying chronic medical conditions who have fever, cough or any type of respiratory distress; any people — including healthcare workers — who within 14 days of symptom onset had contact with a suspected or confirmed coronavirus patient; and any people with history of travel from an affected area or an area with community spread. Here is complete list of testing sites in Broward, Palm Beach and Miami-Dade counties.

 

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Re-opening Amenities In Times Of Uncertainty, Part 2 by Kaye Bender Rembaum

Re-opening Amenities In Times Of Uncertainty, Part 2 by Kaye Bender Rembaum

  • Posted: May 06, 2020
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Re-opening Amenities In Times Of Uncertainty, Part 2 by Kaye Bender Rembaum

by Kaye Bender Rembaum

In response to our article below, we have received inquiries from readers  regarding the ability of an  association located in Palm Beach County to use volunteers to provide the pool  monitoring as required by Palm  Beach County Emergency Order Number 5.

In relevant part, the Palm Beach County Order provides that as to the re-opening of community swimming pools the association must have “[o]ne (1) or more facility staff or management be present at each facility location to monitor and ensure compliance with the [Order].” There is no definitive instruction in the Order as to how a community association is to comply this particular requirement. However, based upon the plain meaning of the words, the association should have personnel from management or association staff physically present at the association’s pool facilities during its operating hours to monitor the use of the pool facilities to ensure compliance with the Order.

 

 

Webinar: Association Continuity During COVID-19

Register Today

Thursday, May 7, 2020

12 Noon to 1:00pm

Kaye Bender Rembaum attorneys Michael S. Bender and Jeffrey A. Rembaum will be a part of a panel discussion presented by Castle Group, in Episode 2 of “Association Continuity and Other COVID-19 Concerns.” There will be a special focus on the re-opening of community amenities.

Panelists include:

Craig Vaughan, Castle Group President

Michael S. Bender, Esq., BCS

Jeffrey A. Rembaum, Esq., BCS

Brendan T. Lynch, AIP AAI, Plastridge Insurance, President

 

Register to Attend HERE

 

 

In addition, based upon an April 28, 2020, posting from the Palm Beach County website, it is suggested that an association could also appoint a committee of community volunteers to perform the pool monitoring. The issue created by the Palm Beach County Website posting is that the Order required “facility staff or management” to provide the pool monitoring. The term “volunteers” was not not used.

 

With that in mind,  if an association located in Palm Beach County decides to use volunteers to provide the pool monitoring function, then the following should be taken into consideration: 

 

1) If a resident who contracts Covid-19 later sues the association alleging a breach of the Order somehow led to their contracting of the virus, then will the association be in a position to show compliance with the Order when, in fact, volunteers were used? While such a lawsuit is remote, given today’s litigious environment it is not out the question.

2) Does the association have legal defense coverage which would at least provide for assignment of defense counsel so that the association will not have to go out of pocket in the event its other insurance policies do not provide coverage?

3) Does the association have insurance coverage in place to cover acts of volunteers?

4) Does the association have volunteer workers comp type coverage in place?

 

Although not required by the Order, we suggest that the association consider conspicuously posting or having available as a handout a summary of the CDC Social Distancing Guidelines and the Palm Beach County Emergency Order Number 5 as related to use of community pools.  The following links are provided for your reference:

Palm Beach County Emergency Order Number 5

The Palm Beach County Website April 28 posting related to volunteers  

Remember to also discuss the re-opening plan with your association’s legal counsel. 

 

Kaye Bender Rembaum, Attorneys at Law

The law firm of Kaye Bender Rembaum, with its 19 lawyers and offices in Broward, Palm Beach and Hillsborough Counties, is a full service law firm devoted to the representation of more than 1,200 community and commercial associations, developers, and their members throughout the State of Florida. Under the direction of attorneys Robert L. Kaye, Michael S. Bender and Jeffrey A. Rembaum, the law firm of Kaye Bender Rembaum strives to provide its clients with an unparalleled level of personalized and professional service that takes into account their clients’ individual needs and financial concerns.

http://KBRLegal.com

 

 

 

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IT’S TIME FOR SOME NEW LEGISLATION FOR VOTING for OUR ASSOCIATIONS By Eric Glazer, Esq.

IT’S TIME FOR SOME NEW LEGISLATION FOR VOTING for OUR ASSOCIATIONS By Eric Glazer, Esq.

  • Posted: Apr 28, 2020
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IT’S TIME FOR SOME NEW LEGISLATION

By Eric Glazer, Esq.

 

No doubt we have been in unchartered waters for the past few weeks now.  Boards have been uncertain about how, when and where they can hold board meetings.  Unit owners are upset that they have heard that their Board is actually having meetings that they cannot attend.  Decisions are being made at meetings that are not properly noticed.  No doubt decisions and votes are being made by e-mail, even though the statute clearly prohibits it.

       Despite the extraordinary powers given to Boards under the emergency powers statute, there are a few things that remain clear;

  1. Board meetings must still be noticed;
  2. Unit owners have the right to attend board meetings;
  3. Board members still cannot vote by e-mail;
  4. Board members have the right to appear at Board meetings via telephone, real-time videoconferencing, or similar real-time electronic or video communication and it 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.
  5. Unit owners who are not on the Board have no right to attend their Board meeting via the same technology that Board members get to use.

So what needs fixing?  Obviously, in light of recent events, all board meetings and unit owner meetings must be made available to the owners through technology.  Nobody should be forced to attend a meeting in person if board members are not forced.  .  Now, before anyone starts yelling that this is impossible…… it isn’t.  There was pushback about having a mandatory website that would hold all of the association’s records.  We learned it works great.  There was pushback when it came to on-line voting.  We learned it works great.

For me however, these past few weeks have been an incredible learning experience.  I have had the joy and honor of continuing to teach the Board Certification and Legal Update seminars.  There are 130 people on-line at one time!  We are on-line for three hours.  It works perfectly.  And after my part is over, everyone who wants to be heard gets to be heard.  Don’t tell me Board meetings can’t be run the same way.  They can.  Easily.  Far fewer people typically attend a board meeting.

So, it’s clear that it’s now time for unit owners to get the same rights as board members do and have the opportunity to appear at their Board and unit owner meetings through the use of technology.  If you still choose to attend in person, even better.  The choice should be yours.

 

 

 

The State of Florida Property Management Association has looked into these issues for voting and have found in Florida,  There are a few companies that had the insite and looked into the future of Online Voting. 

 

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

BeckerBALLOT, a joint partnership between Becker & Poliakoff and SHYFT digital. 

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

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

 

 

Please join us from the comfort of your home or office for one of our upcoming online webinars where we will demo the vote creation and management tools with opportunity for Q&A.

April 28: 10:30 – 11:30 am: Register Now
May 5: 10:30 – 11:30 am: Register Now
May 12: 10:30 – 11:30 am: Register Now

 

 

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