What You Need to Know About Mandatory Mediation Between HOAs and their Homeowners

Before You Sue Your HOA—or Your HOA Sues You!

As you may already know, before certain suits may be filed by an HOA against one of its residents, by a resident against his or her HOA, or between two residents in an HOA, the parties must first take part in a pre-suit mediation conference to attempt to resolve the dispute. But exactly what types of disputes are we talking about?

The statute, by its terms, applies to “[d]isputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association.”  For more information, please take a look at Section 720.311, Florida Statutes.

The statute requires that, before filing suit, the “aggrieved party”—whether the HOA or the homeowner—send a written notice to the other party, setting forth the nature of the dispute and requesting that the party agree to take part in a mediation conference.  The form of the required notice is set forth in the statute.

A party refusing to take part in the mediation, or failing to respond to the request within the 20 days provided in the statute, will lose any claim it may have for attorneys’ fees and costs if it is the prevailing party in the ensuing lawsuit.  This can be a substantial penalty, since Chapter 720, Florida Statutes, provides for an award of attorneys’ fees and costs to the prevailing party in nearly all of the types of disputes which are subject to the mediation requirement.

As a twenty-year Certified Circuit Court Mediator who has focused a substantial portion of his litigation practice over the past thirteen years on community association disputes, I would be happy to assist parties to HOA disputes in fulfilling their mediation requirements and, more importantly, resolving their differences prior to embarking on expensive litigation. Please contact me at gschaaf@bplegal.com, or visit my website at www.bplegal.com/gschaaf, for more information.

Written by Gary M. Schaaf

Originally posted at Florida Condo & HOA Law Blog

Are you listening to me?

How many times have you tried to get an important message across to your community members only to find yourself frustrated with the feeling that nobody is listening?

I hear many listening-related complaints from condominium management professionals. These are the items that ail them. Do you suffer from any of the following symptoms?

The community website is rarely accessed.

The association newsletters aren’t very well read.

Mailed notices are going unnoticed.

Posted signs are being ignored.

Meetings are poorly attended.

Apathy is a sure sign that your community is not listening.

There are more sources of information bombarding your audience then ever before. TV, radio, billboard, newspapers, internet – our society is filled with a seemingly endless supply of banter aimed at getting the attention of your community members. You are competing with all those distractions when you try to get your message across. To be effective you must be creative.

What can you do?

Take a cue from the world of corporate advertising. Your message needs to stand out. Differentiate yourself from the crowd. Tell your story well and tell it often. Make your messages fun or dramatic. Develop a flare for promotion. Get help if you need it.

Think about some of the more successful communication stories in the world today and learn from them. “The Apprentice” has become a top-rated TV phenomenon. Even if you’ve never watched the show, you probably know who Donald Trump is and have you heard the show’s catchphrase “You’re fired!” way too often. Bad hairdo and oversized ego aside, Mr. Trump is a master of self-promotion. Yet you have something over him when it comes to communicating with your homeowners. You know where they live, how to reach them, and the specific items that they will find interesting. It’s time to put on your game face and show “The Donald” whose really got the right stuff.

I am not suggesting that you invoke the wrath of homeowners in your communities by firing anyone. What I am suggesting is that you learn how to compete with their other interests and speak to them in ways that they will take to heart. If you have not already done so, this would be a great time to take a look at branding your message. Branding is the concept of message consistency in all of your communications. Can you imagine any Donald Trump project without his name all over it? He wouldn’t stand for it because he knows the images invoked by his name help sell his products. Your branding efforts should be just as strong and consistent. Advertising agencies base entire campaigns around this concept and corporations pay millions of dollars for it. You can do it for free! Take that, Donald!

No one wants to be lectured to. Make sure your communications are upbeat. Take your cue from the political “spin doctors” out there who turn lemons into lemonade for a living. Let’s take that age-old problem topic for community associations everywhere – pet waste. Sure you can lecture until you’re blue in the face about fines and pooper-scoopers but it may not solve your problem. One association I work with recently addressed its pet waste problem with a friendly reminder mailed to home owners. The letter reads, “We love your pets but not their waste. Please clean up after your pet. The best way to have good neighbors is to be a good neighbor.” That’s a much nicer way to ask pet owners to behave responsibly than the stern warning of “Pick it up or pay a fine!”

The bottom line is that it doesn’t matter what you are saying if nobody is listening. If nobody is listening, you should reconsider your message and your message delivery methods. You can make a difference and your message will be heard. Are you listening to me?

Written by Bob Gourley at MyEzCondo.com

Clearly defining nuisance activity in your governing documents can help association boards avoid future headaches

A nuisance is generally defined as a person, thing or circumstance which causes inconvenience or annoyance. For some people living in shared ownership communities, there is no escaping a nuisance situation that has risen to a level which impacts the enjoyment of their homes and their community.

If you have ever suffered through a nuisance scenario, you may understand how hard it can be at times to achieve consensus on whether or not the activity in question is an actionable nuisance. Is that television really being played at a blaring decibel level or is the neighbor just particularly sensitive or, worse, looking for a new angle in a personal fight?

In a community association setting, nuisances can come in many forms.

  • Loud, consistent noise either in the form of music, yelling, use of electronic devices or failure to properly soundproof flooring in a multifamily building
  • Pets-barking, defecating, biting, and running around off-leash
  • Secondhand smoke-spilling into neighboring units, balconies and common areas
  • Odors from cooking, chemicals and other sources
  • Hoarding-creating conditions for insect and rodent infestation into neighboring units and common areas
  • Domestic violence-frequent arrival of emergency services and police at all hours
  • Visually unappealing property condition-one example would be an overflowing dumpster sitting in front of a house undergoing renovations for months
  • Short-term rentals

A general nuisance provision is standard in most developer-drafted documents. However, it is rare to find a nuisance restriction that is fully fleshed-out; one which clearly defines the various conditions or behaviors which constitute a nuisance in that particular communities and which can therefore be more readily abated by enforcement efforts. When confronted with a nuisance, the starting point is to find out what is driving the behavior or condition and identify the quickest way to resolve the problem. Sometimes the behavior is driven by a mental illness and other times it is a deliberate attempt to annoy.
If an owner is unwilling to cure the nuisance activity, the association’s options may include fining, suspension of common area use rights and pursuing a Court Order to force the behavior or activity to stop.  All enforcement will be easier if the activity or behavior is clearly identified in your governing documents as being a nuisance rather than having to debate the issue.

Next time you decide to update your governing documents, please discuss what changes should be made to your nuisance restriction with your association attorney.

Written by Donna DiMaggio Berger at The Community Association Law Blog

The Value of Education in Your Communications

For years, I have been writing about the importance of communication as it relates to community association living. I have stressed how important it is that you tell your story well and that you tell it often. Newsletters, letters, websites and any other tools used to communicate need to educate readers about what is happening within their associations and why.

As recently proposed legislation across the nation has shown, there has never been a time when communication and education efforts between Board Members, Property Managers, and unit owners have been more important. Community Association Volunteer Leaders at recent programs in my state of Connecticut have indicated there seems to be a vacuum of education between Board Members and unit owners regarding the responsibilities of each as it pertains to creating and maintaining a healthy and vibrant community association.

Let’s Begin at the Beginning

Educators have long asserted that the learning process begins at birth. The birth of a community association resident begins when they purchase a unit within your association. What can we do to begin the education process when a community association unit is put up for sale?

Currently, there are few or no regulations requiring the education of realtors as to the rights and responsibilities of folks who choose to live in community associations. In their profession, realtors are compensated in the form of commission which is only earned upon the successful completion of the sale. They are not required to notify the potential buyer of their rights and responsibilities prior to the completion of the sale.

Potential buyers are generally interested in the appearance and upkeep of the unit and the overall look and feel of the community. Again, there are no regulations regarding their education about their responsibilities once they become unit owners. In fact, as is often the case, their first dose of education often comes when they violate a rule or regulation resulting in a violation letter or fine. In a worst-case scenario, this can create a potential long-term conflict between the community association and its residents. At the very least, it can create a poor start to a new unit owner’s experience.

CAI has published a two-page pamphlet called “Rights and Responsibilities for Better Communities

Principles for Homeowners and Community Leaders” that is available, free of charge, athttp://www.caionline.org/info/readingroom/Publication%20Excerpt%20Library/rights.pdf

If a community were to adopt these practical guidelines and distribute them freely to realtors and potential purchasers, I think many of the problems that surface because of poor initial education efforts could be avoided. As a disclaimer, CAI says: “Like many worthwhile endeavors, community living cannot be free of conflict. Utopia does not exist. With all of their inherent advantages—and there are many—community associations often face difficult issues. While adopting Rights and Responsibilities will not eliminate all conflict, its adoption can stimulate communication, promote trust and cooperation, clarify expectations and build a greater sense of community. CAI urges you to take advantage of this opportunity.” And so do I.

Education is an Ongoing Process

Education, by its very nature, never ends. It is an organic and ongoing process. It also takes work and commitment. As a leader within your community, one of the worst mistakes you can make is to assume that all of your community members are educated as to the efforts of the Board of Directors and/or Property Manager. In fact, it is far better to assume that they don’t know what decisions you are making or why. Educating them as to what is happening and why is an excellent use of your time.

Recent regulations are aimed at providing unit owners access to the business proceedings of the Board. I suggest you take it a step further and engage your fellow unit owners with education about the challenges facing the Board and the decision-making efforts being made on their behalf. Dedicate a portion of your newsletter and website to education on a regular basis.

Commit to unit owner education. Reward yourself with a better community!

Written by Bob Gourley at MyEzCondo.com

Condominiums That Fail To Properly Fund Reserves Will Usually Resort to Costly Special Assessments

Question: My condominium association has no reserve funds for our roof. Every year at the annual meeting, the board asks the owners to waive the reserve funding and every year the owners vote to waive the reserves. Now we need a new roof for the building and the board is telling the owners that there will be a special assessment of over five thousand dollars per unit. Can the board just levy such a large special assessment without the owners voting on it? N.R. (via e-mail)

Answer: Probably. The Florida Condominium Act does not impose any limits on a board’s authority impose special assessments. The statute simply provides that the association must give fourteen days mailed and posted notice of any board meeting where special assessments are to be considered. There are other technicalities in the statute as to the content of the notice, as well as the content of follow-up notices that must be sent. Obviously, any special assessment would have to be for a proper common expense, but I assume there is no debate that your roofs are the association’s responsibility.

Any limitation on a board’s authority to impose a special assessment would have to be contained in the condominium documents. Although not the norm, it is not totally uncommon to see condominium documents that impose limits, such as providing that any special assessment over a certain amount requires unit owner approval. I have heard some debate the legality of such a
restriction.

Your situation demonstrates the risk of routinely waiving the funding of reserves. While associations want to keep assessments low, if there are insufficient reserve funds to pay for a capital item that needs to be replaced, the association has limited options.

 

Written by Joseph Adams

Originally posted at Florida Condo & HOA Blog

Will Florida’s new online election law for community associations spell welcome relief or more headaches?

The Florida Legislature recently approved a new law which will allow community associations to conduct their elections online through the use of electronic voting. While associations in other states have had this ability for some time now, this is a sea change for the millions of Floridians living in shared ownership communities.

For years, many of the disputes in condominiums, cooperatives and homeowners associations, have stemmed from the annual meeting and election process. People who ran for the board and weren’t elected were convinced that the current board or the manager who doesn’t like them somehow “kept them off’.  We’ve heard tales of ballot boxes being stuffed, tampered with and altogether ignored. In the condominium setting, allegations of forgeries on outer envelopes is always a concern while in the HOA setting, complaints of rampant proxy abuse are common in connection with the election of the board members.

Howard Perl, a Shareholder with the law firm of Becker & Poliakoff, has handled these disputes for more than a decade. “Many of the disputes involve judgment calls. Some ballots are discarded when they shouldn’t be and others are allowed when clearly they should have been invalidated” he explained.

Election disputes don’t come cheap. They are subject to mandatory arbitration with a Florida state agency and can cost up to $5,000 or more depending on how hotly contested the matter is.  Florida’s Department of Business and Professional Regulation will be meeting in early August to begin drafting rules to address the new statute.

Now that the path has been cleared to allow Florida’s associations to utilize online voting, the question remains whether this move will result in fewer or greater complaints associated with electing a community’s board of directors.  Remember the national focus on the Sunshine State’s unfortunate hanging chad incident? Hopefully, we will not have a repeat performance and our Florida communities will embrace this new option as one which will (a) likely increase voter participation and (b) reduce the possibility for voter fraud.

 

Written by Donna DiMaggio Berger

Originally posted at Community Association Law Blog

How to Increase Your HOA’s Revenue with Coupon Books

Successful HOA’s are always looking to find creative and unique ways to be competitive and profitable. Would you like to eliminate an annual expense or turn that expense into a profit? Of course you would!

Payment coupon books are an essential and necessary component of any property management company’s billing process. What if you could transform HOA coupon books into marketing tools for local businesses and enjoy an added revenue stream for your HOA?

For decades, SouthData customers have used message coupons inside payment coupon books as a way to communicate with homeowners. Message coupons are extra pages placed into the payment coupon books that contain information instead of payment coupons.

Property management companies can use these message coupons as powerful advertising platforms for business partners in their area. Businesses pay for the ad space within the message coupon, thereby helping you offset the costs of producing the coupon books.

Everyone wins:

  • Advertisers gain a higher return rate, reach target audiences, and enjoy repeated exposure
  • Management companies enjoy added revenue and are reimbursed for the costs of producing payment coupon books
  • Homeowners see ads about products and services that are relevant to their lives

Potential advertisers can include everyone from auto repair shops, electricians, and plumbers to heating & cooling specialists, pest control services, or home security companies. With access to 100% of their market base, you have the ideal platform local advertisers need to reach their audience.

  1. ADVERTISEMENT SPACE: Show businesses a coupon book sample and the message coupon so they will be able to see the advertising space.
  2. ADVERTISER EXCLUSIVITY:  Coupon books have five message coupon slots. Allow only one advertiser per industry in order to guarantee them exclusivity within their market and block out their competitors. Ex: Only one pest control company, etc…
  3. REPEATED EXPOSURE: Ads will be viewed an average of 12 times per year and are usually seen by spouses as well.
  4. MEASUREABLE RESULTS: Advertisers can track their results by offering a redeemable coupon, a unique phone number, or website address in the ad.

Written by Chelsey Seidel

Originally posted at PayLease.com

How Often Should the Condo Association Change Auditors and Attorney?

C.T. from Hartford County writes:AskMisterCondo

Dear Mister Condo,

Thank you for being there to answer questions. What a grand resource!!!!

–How often should one change auditors for a large condo with a budget [excluding reserves] of over 3.5 M?

–Is there a standard/recommended amount of time to have the same auditor year after year?

–Also, the same question re a condo’s lawyer?

Mister Condo replies:

C.T., thank you for the kind words. Let me see if I can repay you with some kind advice.

Generally speaking, auditors are outside third parties that have no vested interest in the association, meaning they have an assignment of reviewing “the books” for the association and giving an opinion as to whether or not everything is in order. Unless there has been a problem of some sort with the auditor’s performance, I am not certain there is any need to change auditors. Keep in mind that your auditor also works for other associations and businesses. If there are no complaints against the auditor from any of these sources, I think I would keep the auditor. Of course, it is a two way street and if the auditor is showing signs that he or she is no longer interested in auditing your association’s records, then it is most definitely time for a new auditor. You need sharp eyes and keen business acumen to do a good job of auditing association records, especially the dollar volume of an association as large as yours.

Condominium lawyers are another story, in my opinion. Many condominium associations suffer from “institutional memory loss” as Boards change leadership and members over the years. Many times, the condo lawyer is one of the few constants for the association, which can be quite useful so the same mistakes are not made again and again by new Board members. That being said, if the association feels their attorney isn’t best serving it, there is no shortage of qualified community association attorneys that could be considered. However, to simply change attorney for the sake of changing attorneys makes no sense to me at all. In fact, it might even create duplicate work for the association if a new attorney were asked to help out with a legal matter a previous attorney had already handled for the association.

The bottom line is that these professionals are external to the association and have no vested interest as unit owners within the association might. If they are performing to the expectations of the association, I see no reason to change them simply for the sake of change. Good luck!

Originally posted at AskMisterCondo.com

New Owner Trashes Fine in Florida HOA

Question: I live in a homeowners’ association and the declaration of covenants provides that trash cans may not be put at the curb until 7PM the night before trash pickup. I am new to the community and was not aware of this provision and put my trash cans out at 5PM. About a week later I received a notice that the board had levied a fine of $200 against me and that the fining committee would be meeting to consider whether to confirm or reject the fine. I thought that a fine could not exceed $100 per violation. Is the $200 fine levied against me legal? S.H. (via e mail)

Answer: It could be. It will depend on the association’s governing documents.

While your ignorance of the recorded covenants is not a legal defense, I must say you’re your association’s fining practices seem overly aggressive, bordering on overreaching. While not required by law, most associations provide a warning letter as a means of seeking compliance with the governing documents before resorting to fines, especially for minor violations such as this.

Until very recently, both the Florida Condominium Act (Chapter 718, Florida Statutes) and the Florida Homeowners’ Association Act (Chapter 720, Florida Statutes) provided that a fine could not exceed $100 per violation. Chapter 720, Florida Statutes was amended, effective July 1, 2015, to provide that the maximum per day fine can exceed $100 per violation if a higher amount is set forth in the association’s governing documents.

There is a similar dichotomy between the condominium and the HOA statutes as to the maximum fine that can be imposed for a “continuing” violation. For condominiums, Chapter 718 provides that a fine for a continuing violation is capped at $1,000. However, Chapter 720 provides that a fine for a continuing violation may exceed $1,000 provided that a higher maximum amount is specified in the governing documents.

If the governing documents for your community allow fines of $200, and the fine is properly imposed, it is legal, but it doesn’t sound fair.

 

Written by Joseph Adams

Originally posted at Florida Condo & HOA Law Blog

Making a Good First Impression: 10 Ways to Make Move-Ins Easier for Residents

Let’s be honest – moving is not fun. But for community managers, move-in day is a perfect opportunity to kick start resident retention efforts by making a good first impression. Here are some easy ways you can make the move-in process less stressful for your residents and start building a solid relationship with them.

1. Set a specific time for lease signing that is completely separate from the time the new resident picks up their keys. This gives them time to actually read and review their legal documents, sign up for automatic rent payments and ask questions without feeling stressed out – after all, moving is stressful enough.

2.  Is your building a mid-rise or a high-rise? Be sure to thoroughly explain elevator time so your new resident knows exactly when they can use the elevator during their move-in. Some people have never lived in elevator buildings before and therefore are unsure how to go about reserving and utilizing the elevator. Don’t make them ask…tell them ahead of time how it works.

3. Equip your resident’s new apartment with move-in supplies. Move-in supplies are things like a bottle of hand soap, a roll of paper towels, a roll of toilet tissue, freshly made ice in the freezer (with a sign that states the ice is freshly made) and maybe an inexpensive shower curtain placed in the bathtub. This really sets the tone for a great experience and will make your resident very happy. And by the way, toilet paper is NEVER a move-in gift.

4. Provide a nice move-in gift. This is not the time to get rid of the leftovers from the company picnic. And residents don’t always want things that are emblazoned with the company logo. Offer something like a fresh bouquet of flowers (already placed in the apartment), a small plant, or a set of reusable shopping bags (especially if you are in a city or state where plastic bags are no longer allowed).

5. Set the thermostat in the apartment to a comfortable temperature on the morning your resident is moving in. There aren’t many things worse than walking into a blazing hot apartment after moving heavy furniture. Also, make sure the fridge is cold and the hot water heater is no longer on ‘vacation’ if you set it back during periods of vacancy.

6. Place carpet protection tape throughout the high traffic areas of the apartment. This clear film with adhesive backing will keep the carpet clean and is a welcome sight to new residents, especially on rainy or winter day move-ins. A roll of carpet protection tape will cost approximately $55 for 200 feet. This will keep the carpet clean, the new resident happy and prevent your maintenance team from having to come back and clean the carpeting again after the move-in is completed. Plus, it makes a great first impression!

7. Stop by on move-in day to see how things are going. Maybe deliver a few cold bottles of water or a couple of garbage bags for any trash they may create. Offer to walk through the apartment and help your new resident complete the inventory checklist. It’s a great way to get it completed, signed and on file.

8. Offer to show them how to use all of the appliances in the apartment. Switching from a gas stove to electric (or vice versa) can be daunting to some. For residents who are living in an apartment for the very first time, this orientation can be amazingly helpful. New residents who have never lived in the United States may also want a walk-through of how to use everything. And don’t forget to show them where the circuit breaker panel is!

9. Put a customized refrigerator magnet on the door of the fridge. Along with the property logo, include important information such as the office phone number, email address, website and office hours. Don’t stop there! Make sure the magnet is holding up coupons from area restaurants and service providers with offers for your residents. The best type of magnet is the chip clip/magnet combination. Residents seem to prefer those the best.

10. Follow up again with your new residents in approximately 24 hours to make sure all of their concerns are handled appropriately. Then call back at the end of their first week, and at least one more time before their first month is over.

Written by Lisa Trosien

Originally posted at PayLease.com