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ELECTIONS, INSURANCE, AND A SENSELESS DEATH

ELECTIONS, INSURANCE, AND A SENSELESS DEATH

ELECTIONS, INSURANCE, AND A SENSELESS DEATH
This season, more than any other of late, the issue of condominium election ballot verification reared up. The condominium election process is unique and very regulated. In addition to many other requirements, ballots are to be placed in an inner plain and unmarked envelope which is to be placed inside a larger envelope which must, as per Florida law, contain the unit owner’s name, address, unit number and signature. As part of the election process, this information is later verified against the associations’ membership records to ensure that only the unit owner, or the unit owner’s designated voter, cast their ballot. It is the plain inner envelope that guarantees anonymity.

Given the sheer volume of units in many condominium communities, which translates to the number of ballots that can be received, the process of tabulating the ballots can take hours. To speed things up, some condominium communities prefer to verify the outer envelope information in advance of the election ballot tabulation that takes place during the annual members’ meeting. That said, and what may come as a surprise to some, is that you cannot just start verifying the outer envelopes. If you do, then your entire election is subject to challenge. Tampering with the election materials creates an inescapable cloud over the entire election process from which there is no escape, but a new election. It is so simple to avoid, too.

 

Section 61B-23.0021, of the Florida Administrative Code, details the verification process as follows: “Any association desiring to verify outer envelope information in advance of the meeting may do so as provided herein. An impartial committee designated by the board may, at a meeting noticed in the manner required for the noticing of board meetings, which shall be open to all unit owners and which shall be held on the date of the election, proceed as follows. For purposes of this rule, “impartial” shall mean a committee whose members do not include any of the following or their spouses: 1) Current board members; 2) Officers; and 3) Candidates for the board. At the committee meeting, the signature and unit identification on the outer envelope shall be checked against the list of qualified voters. The voters shall be checked off on the list as having voted. Any exterior envelope not signed by the eligible voter shall be marked ‘Disregarded’ or with words of similar import, and any ballots contained therein shall not be counted.” Now you know how to have your cake and eat it, too. Just follow the simple procedures to verify the outer envelopes and you can be home in time for the 10:00 P.M. news.

 

Once you are elected to the board, make certain the directors’ and officers’ liability coverage is in place. In most instances, a board member’s duty is to exercise their reasonable business judgment. They can make decisions that later turn out great or bad, but so long as they acted reasonably under the circumstances, and without malicious intent, the association’s insurer typically stands by their coverage obligations. Noteworthy is that, as related to procurement of insurance, a condominium board member’s statutory duty as set out in s. 718.111(11), Fla. Stat, is one of “best efforts”. Casualties of all sorts can occur at any time. For example, just look to the recent tragedy that led to the death of Trayvon Martin.

 

Friends, family and clients are all asking, will George Zimmerman’s homeowners’ association be sued? Yes, most likely it will. That is one deep pocket not likely to be missed. We could also see intentional tort claims brought against the individual directors by the victim’s family. If such claims are victorious, then it’s the individual directors who are liable, not the association’s insurer. Under the circumstances, as reported thus far, a finding of individual board member liability is not unlikely.

The more difficult question to answer is whether the HOA will have liability for its actions or failures to act? Was the association, based on the acts of its boards (both past and present) negligent or grossly negligent (reckless disregard that rises to such a level so as to appear to be an almost willful violation of the safety of others)? If so, the insurers would likely fight to pay only their fractionalized share of the association’s blame. This is referred to as “contributory negligence” where each culpable party pays their share of the blame. You might also hear about some court activity where the plaintiffs try to force the association to suffer its judgment separate from the other defendants. Doing so could create opportunity for larger settlements and judgments. Think of it this way, would you rather receive just $1,000 from 10 people, or have 10 people each give you $1,000?

 

In many ways, suing a homeowners’ association is like suing a successful, well capitalized corporation. Without proper insurance coverage in place, a judgment against your association would also be your next special assessment. Make sure your association’s insurance professional is made aware of all activities taking place in your community, from watch committee activity to use of the clubhouse by private organizations. Crime and accidents occur everywhere, at any time, when you least expect it and without notice. Advance planning is your only defense.

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ANNUAL MEETING TIPS FOR ASSOCIATIONS

ANNUAL MEETING TIPS FOR ASSOCIATIONS

ANNUAL MEETING TIPS FOR ASSOCIATIONS

by Enrolled Agent Steven J. Weil, Ph.D., EA, LCAM, Royale Management Services, Inc.

 

As associations plan their annual meetings, these reminders and specific steps will be useful.

The annual meeting is a membership meeting in which every member can and should participate. Participation comes through properly-made motions, seconds, taking part in the discussion of motions and through voting.

The first order of business he is to appoint the chairperson to run the meeting.  The chairperson can be anyone who the members agree should chair the meeting.  In many associations the board president chairs the meeting; however, this requires approval of the members. Some associations ask their manager or attorney to chair the meeting.  This is acceptable as long as it is approved by the membership.  In large associations having a professional chair the meeting can help to keep it on track and see that the required business gets done properly.

A motion as to who shall chair the meeting can be made by any member of the association.  This motion must be seconded and then voted on by the members present. If the motion is approved by a majority of the member’s present, the chairperson is elected for the meeting.
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Are your board meetings productive and efficient?

Are your board meetings productive and efficient?

  • Posted: Mar 08, 2023
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Board meetings should be productive, efficient meetings where the board conducts business. Stop and think about that for a minute. Are your meetings productive and efficient? Does the board meet to conduct business or socialize? Are you getting the most out of your meetings?

We’ve put together seven keys to a successful board meeting. Following these suggestions can bring new life to your association and keep volunteers interested in helping.

 

 

1.- Board meetings should not last more than one hour. Start the meeting when it is scheduled to begin and get straight to business. If you collectively have the focus to get done in an hour you’ll be amazed with how much you can accomplish. If you have no time limit, the meeting will typically drag on and a lot of time will be wasted.

When time is wasted at a meeting then people are less likely to volunteer because they feel their time is wasted. One hour meetings have a major impact on volunteers. Associations that hold focused, one hour meetings have more people volunteer. It’s also important to note that those volunteers stay active the in the community for much longer. Length of your board meetings may seem like a trivial matter, but it really does have a large impact on how the volunteers of the association view the organization and, in turn, how they view their role.

 

2.- Make your meetings action oriented. Don’t just discuss issues, make decisions. Every item up for discussion should end in a vote to move forward in some way or table the issue with a clear understanding of why the item is being tabled and when it will be revisited. When taking action on an item make sure it is clear who will be responsible for getting that task completed. Ambiguity cripples a board.

 

3.- Board Meetings are for the board. They are not neighborhood meetings or social gatherings. The purpose of a board meeting is to conduct business, not see how many people you can get to attend. Some board members try to get as many people to attend as possible. This is missing the point. Homeowners are, of course, welcome to attend but it is not a membership meeting. The purpose of the board meeting is for the board to consider the affairs of the association, make business decisions, and then have a clear plan of action.

 

4.- Take time prior to the meeting to think about what you want to discuss. Inform the community manager of this one week prior to the meeting. This way your topics of discussion can be placed on the agenda which will allow the other board members and the community manager the opportunity to think about and/or research the item you want to talk about. When you don’t come prepared and spring things on the other board members or on the community manager this typically results in a lot of unnecessary discussion with additional research needed in order to make any kind of decision. Remember, be action oriented. By planning ahead you can make more decisions at the meeting instead of causing an item to be discussed twice and delayed for months.

 

5.- There are an odd number of board positions for a reason. You will not always see eye to eye. Don’t take it personal if the other members of the board disagree with you. This will occur and is healthy. While each board member should attempt to come to a consensus with the other members, you will not be able to achieve this each time. Countless hours are wasted by board members continuing to argue a point just to obtain “victory” on a certain issue or to avoid any vote that is not unanimous. This occurs because someone is taking it personal. If your view is not shared on an issue, take a vote, and move on. Do not hold a grudge. Recognize that you can disagree and still work well with each other.

 

6.- If you think you may have a conflict of interest do not vote on that issue. Let’s say a board member’s spouse is on a committee. If the board is making a decision on an issue related to that committee then the board member with the spouse on that committee should excuse him/herself.

 

7.- Most associations should hold quarterly meetings (unless your bylaws require more). Meeting more often than that becomes excessive and unnecessary. Remember you want to have focused, short, productive meetings. This keeps people interested in serving on the board and on committees. If the association is constantly meeting then people feel it is taking too much of their time and they will stop volunteering. It is important to note that you are required to comply with the minimum meeting requirement in your bylaws. Most association bylaws require no more than quarterly meetings, but check yours to be sure.

 

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Outgoing board members to return all official records

Outgoing board members to return all official records

  • Posted: Nov 03, 2020
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Outgoing board members to return all official records … to the incoming board.

Now as benign as this may seem it speaks to a greater problem and that issue is: Where are all the association’s records? Why did the legislature have to go out of its way to create a specific law to obligate a proper transition from one board to the other? There must be a problem here.

 

The problem is that community associations have a lot of records and it goes beyond what a board of directors has control of because managers and management companies also have control of essential documents that very often go missing. Let’s take a few examples to demonstrate the problem.

A big wind comes and knocks off a couple of roofs in your association, it happens all the time. Well, the first thing that the insurance company wants are the maintenance records roofs going back seven years before they pay for the claim. No records…claim denied and its lawyer time. Another good one relating to community association collections, is that the board has decided to foreclose on Mister Delequaint for non-payment of assessments for the past five years. Mr. Delequaint arrives in court and his lawyer asks the association’s attorney to provide the proof of mailing for the budgets for said five years and they are nowhere to be found. As a matter of fact even the budgets are stone cold lost.

The judge can very well possibly rule in favor of Mr. Delequaint (no association foreclosure) and even award him prevailing attorney fees. All these maladies could have been avoided if the association had a document retention policy and followed the protocol.

Let’s face the facts and understand that community associations are volatile environments and calling them dynamic is kind. Boards of Directors change, emotions run high, management companies are dismissed frequently, as are attorneys, vendors and whoever else gets an opportunity to work for an association. In the middle of all of this mess records, contracts, ledgers, insurance policies, minutes, proof of mailings, warranties, governing documents, proof of meeting notices, notes and everything else that can be put on paper fall into a deep dark abyss never to be found again. Sometimes by accident and often by design by disgruntled board members, dismissed employees (managers), or untrained office staff who may feel that the round file is for everything that is over a year old.

So now that the problem has been identified what is the solution? First as mentioned above, the board of directors must establish a record keeping policy and protocol (vote on it and put it in the minutes). Don’t lose those minutes and approve them at the next meeting. Said policy should identify all the records that an association must keep and for how long. This is easy because it’s all in the statutes (for Florida condos 718.111 and Florida HOAs 720.305) and I doubt that any state does not address this issue.

 

The next thing is:

HOW can an association keep these records from disappearing never to be found again? There are many ways to go about this and technology may have the answer. Although it might seem to be expensive it is possible that all documents be kept electronically and not just on paper.

Have them scanned and put them away on a remote server. This technology also gives an association a backup just in case that big wind comes and blows away your office or the management office.

Once again referring to Florida condo statutes 718.111(12)(b) it is crystal clear that documents can be maintained in digital format. In Florida HOA statutes 720.303(5) the legality of keeping records in digital form is not so clear but it is still a prudent idea. No matter what your board comes up with you should be able to easily get your hands on the minutes of a meeting from five years ago or all the maintenance records for the roofs. Try it and if you cannot put your eyes on them it proves that your community association has a problem that needs to be fixed right away.

Find the right companies to help you with Digital Record Keeping, Websites and Accounting.

 

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A few tips and reminders with everyone, as associations plan their annual meetings

A few tips and reminders with everyone, as associations plan their annual meetings

As associations plan their annual meetings, we thought we would share a few tips and reminders with everyone.

Annual Meetings

RePublished with permission from Our Members:  http://royalemanagement.com/home/

Royale Management Services, Inc.
2319 N. Andrews Avenue, Fort Lauderdale FL 33311
Phone: (954) 563-1269 | (800) 382-1040 | Fax: (954) 563-2153 | Email: CAM@rmsaccounting.com

 

The annual meeting is a member meeting, hence every member can participate. Participation is by properly made motions, seconds, taking part in discussion of motions and through voting.

The first order of business is to appoint the chairperson to run the meeting.  The chairperson can be anyone that the members agree should chair the meeting.  In many associations the board president chairs the meeting; however this requires approval of the members. Some associations ask their manager or attorney to chair the meeting which is acceptable as long as this is approved by the membership.  In large associations having a professional chair the meeting can help to keep it on track and see that the required business gets done properly.

A motion can be made by any member of the association as to who shall chair the meeting.  This motion must be seconded and then voted on by the members present. If the motion is approved by a majority of the member’s present, the chairperson is elected for the meeting.

The Second order of business is to determine whether a quorum of the members is present in person or by proxy.  The quorum requirement is spelled out in the association documents or by state statute.  Without a quorum no business can take place at the meeting.  However, ballots must still be collected.

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Over the past several years, all of Florida’s community association statutes have been amended to require that board members be “certified.”

Over the past several years, all of Florida’s community association statutes have been amended to require that board members be “certified.”

Board Members Courses:

Newly elected or appointed board members must sign a form, that provides that the board member has read the association’s governing documents, and that such board member will work to uphold such documents to the best of his or her ability.

Further, the board member must agree that he or she will faithfully discharge his or her fiduciary duty to the association’s members.

In lieu of signing this written certification, a newly elected or appointed director may instead provide a certificate demonstrating that they have satisfactorily completed an approved educational course.    

 Find Upcoming Board Member Courses on our Calendar on SFPMA.COM

A prospective board member can attend and complete such an educational course up to one year in advance of taking a seat on the board.

In the event that a board member fails to either complete an educational course or sign the required form within ninety days of their election or appointment to the board, such board member is suspended from service on the board until they complete the requirement.

SFPMA.COM has a full list of Courses that are offered by our members. View our Calendar of Events and keep informed. Take advantage of these required courses.

Thank You SFPMA

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E-Mails and E-Mail Addresses

E-Mails and E-Mail Addresses

Who is entitled to the e-mail addresses of your association’s members? Are e-mails sent between board members part of an association’s official records? What about e-mails sent by a board member to the manager?

 

Only the e-mail addresses of unit owners who have either consented to receive notice by e-mail or have consented in writing to the disclosure of their e-mail addresses are subject to review during an official record inspection. Section 718.111(12), Florida Statutes, provides, with regard to unit owner e-mail addresses, that “[t]he association shall also maintain the electronic mailing addresses… of unit owners consenting to receive notice by electronic transmission. The electronic mailing addresses… are not accessible to unit owners if consent to receive notice by electronic transmission is not provided in accordance with [this subsection].” This topic was discussed in Cohen v. Harbour House (Bal Harbour) Condominium Association, Inc., Arb. Case No. 2012-02-3139 (Summary Final Order / Lang / June 29, 2012).

 

In the Cohen case, a unit owner requested a list of all of the e-mail addresses of the members, however did not receive such a list. The unit owner alleged that she was improperly denied the e-mail addresses. However, it was discovered that the association did not have consent from any members to use their e-mail for the purposes of receiving official notices nor did the association have written consent to disclose the protected information from any member. Therefore, the arbitrator held that “[b]ecause, under the statute, no unit owner has submitted his or her email address for notice requirements or consented in writing to disclosure of his or her email address, the [a]ssociation did not improperly deny access by [the unit owner] to its list of email addresses.”

 

In today’s instant world, e-mail allows us to express our thoughts at anytime, anywhere. It is so convenient that it is unavoidable for board members to use it to discuss association business. As the official records of condominium, homeowner and cooperative associations are subject to inspection with limited exception, the question often asked is whether e-mails, including e-mails between board members and between one or more board members and the association’s manager, constitute part of the association’s official records that are subject to inspection by the members.

 

Several categories of records, while still constituting a part of the official records, are not subject to a member’s inspection request. For example, attorney-client privileged correspondence, medical records, information obtained by an association in connection with the approval of the lease, sale or other transfer of a unit and social security numbers, just to name a few, are not subject to a member’s inspection request but still constitute a part of the association’s official records.

 

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

 

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

 

Simply stated, if one was to rely on the guidance cited herein, e-mails solely between board members, even a board majority, are not part of the official records, e-mails between the board and the manager are part of the official records and unit owner e-mail addresses are only subject to inspection where a unit owner has either consented to receive notice by e-mail or has consented in writing to the disclosure of his/her e-mail address. That having been said, it is in my opinion that e-mail communications that involve a board majority are still subject to the board meeting notice requirements already required by Chapter 718, Florida Statutes, more commonly known as the “Condominium Act.”

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Where did the Board Members go?

Where did the Board Members go?

Truant Board members
By: Mitch Drimmer, CAM

With September upon us its back to school for millions of American children, and by law they are required to either attend school or prove that they are being properly home schooled. In a very similar parallel the law in Florida requires that board members of HOAs and Condos attest in writing that they have read the governing documents of their community associations or attend a two hour board certification class. Both students and board members must either prove that they have gone to school or done their reading. The parallel ends here because when it comes to students that are either home schooled or go to accredited schools the government has standards. When it comes to board members in Florida there are no standards, and most certainly two hours of board certification or merely reading governing documents without requiring comprehension is a requirement without any measure of competency.

 

Without exaggeration there are billions of dollars of real estate assets that are in the hands of boards of directors. People’s homes, investments, security and lives are put into the stewardship of volunteer boards. It’s a democratic process but it does not guarantee the ability of those who are elected to govern your community association, and that is where the trouble begins.
Many associations hire community association managers who are required to take at least 20 hours of continuing education classes every two years and although it is a system that is wanting it does require that managers have a modicum of knowledge. Some management companies also have excellent in house educational programs and that is also very helpful. Having trained professionals manage communities may gong a long way, but only if they are allowed to practice their craft.
All too often it is the case that boards of directors do not understand what is required of them, and more times than not community association managers are too timid to stand up to a board of directors for fear of being dismissed and losing their jobs when the boards are out of order and need proper direction. It will never come to pass that the attitudes of board members will change and they will forever misunderstand that their job is to set policy, assume fiduciary responsibility, and insure that the managers they hire are doing a proper job. It is not their place to manage and run their community association albeit it is their right. There will always be boards of directors who over reach and interfere with licensed managers or take associations “self-managed.” So how do we address this quandary?

 

Volunteer boards of directors must do more than just volunteer one hour a month to sit at a meeting, they should assume to take the same CEU courses that are offered to managers. It is very fortunate that in Florida these Community Association Management CEU courses are given often, in many locations, and often for no cost. There are also many good community association schools that provide educational opportunities and any association who budgets and spends money will see a great benefit in return. A month does not pass by when a trade event is not presented in any given area in Florida without a complete curriculum of courses being offered for managers that board members are welcome to attend. From September through December dozens of these courses are offered at no charge to managers and board members by various organizations, trade event providers, and industry specialists. Educational opportunities also abound throughout the year but the season is more towards the end of the year.
There are no truant officers for board members and if they want to govern their associations properly they must realize that two hours of a board certification class is not near what they need. Without this education they are going to put their associations in harm’s way and eventually create costs and problems that could have been avoided. Classes and seminars for board members can easily be found in your area with a simple search on your home computer. I urge board members to take the time to come to class and get the education that they need to govern their own associations better.

 

MITCHELL DRIMMER, VP, CAM
Tel: 866.736.3069 ex. 804
Fax: 866.774-2997
e-mail: mitch@snapcollections.com
Web Site www.snapcollections.com

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