Florida Condominium and HOA Directors Can Usually Serve on Committees

Question: Can a board member also be a member of a committee, such as the fining committee or the landscape committee? (L.D. by e-mail)

Answer: Yes and no. Generally, a board member can also be a committee member. However, there are exceptions. Section 718.103(7) of the Florida Condominium Act defines committee as “a group of board members, unit owners, or board members and unit owners appointed by the board or a member of the board to make recommendations to the board regarding the proposed annual budget or to take action on behalf of the board.” Such committees, sometimes called “statutory committees,” may clearly contain both (or either) board members and non-board members. The composition of other committees, usually called “non-statutory committees” is not addressed in the condominium statute.

The Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, does not define what a committee is or its permissible composition.

To add a bit more to the legal complexity of a seemingly simple topic, Chapter 617 of the Florida Statutes, the Florida Not For Profit Act, authorizes the formation of committees, but only speaks to committees comprised entirely of board members.

Finally, many association governing documents address the composition of committees, and occasionally limit who may serve on committees.

In the absence of any provision in the governing documents to the contrary, I have always interpreted the law to mean that the board can create committees and that board members may be committee members. However, if a quorum of the board has been named to any particular committee, or if the committee in question is a “statutory committee,” that committee meeting would be subject to the “sunshine” rules, including appropriately posted notice for the members, allowing for member attendance and participation, and requiring that minutes be kept. Non-statutory condominium committees must also follow the sunshine rules unless the association’s bylaws exempt them.

In the homeowners’ association context, committees are also required to follow the sunshine rules if the committee has the authority to make the final decision regarding the expenditure of association funds or the committee has the authority to approve or disapprove architectural decisions with regard to a specific parcel.

One major exception involves fining and suspension committees, sometimes called grievance committees, compliance committees, or some similar name. Both the Florida Condominium Act and the Florida Homeowners’ Association Act specifically require that such committees be comprised of individuals who are not officers of the association, directors of the association, employees of the associations or the spouse, parent, child, brother or sister of such persons.

 

Owners Must Follow Procedure to Petition the HOA Board for Agenda Items

Question: I live in a homeowners association and have e-mailed our board president a number of times concerning items that I feel should be discussed by our board. While the president has politely acknowledged my e-mails, none of my suggested topics have been brought up. Does the board at least have to consider my issues? (M.U. by e-mail)

Answer: Probably not. Both Chapter 720 of the Florida Statutes, the Florida Homeowners’ Association Act, and Chapter 718 of the Florida Statutes, the Florida Condominium Act, provide a process for owners to petition the board to have specific items placed on the agenda of a board meeting. Both statutes provide that if the association receives a petition that is signed by at least 20% of the total voting interests in the association, the board must address the subject of the petition either at its next regularly scheduled board meeting or at a special board meeting scheduled within 60 days of the receipt of the petition. While the board must address the subject of the petition at the board meeting, the board is under no obligation to vote in any specific way or take any specific action based on the receipt of a member petition.

Unless there is some unusual provision in your governing documents which permits an owner to request an item be placed on the agenda of a board meeting, the association is under no legal obligation to take up the issues. However, there is no rule against the association’s addressing items that are raised by owners. Perhaps you should attend a board meeting and ask to at least raise your issue to the whole board. Although the law would only require that you be recognized if you wish to speak to a designated agenda item, I have found that most boards do give some leeway for owner input during their meetings.

 

Originally posted on Florida Condo and HOA Law Blog

I filed bankruptcy. It’s not my problem!

“I don’t owe anything else.” “It’s the bank’s problem now.” More often than not, these are the words we hear from an owner after they file for bankruptcy and the association tries to get on-going assessments from them – even when the owners are still living at the property and using the association pool!

Typically an association has two ways to pursue an owner who is delinquent for assessments. First, the association can file a lien and foreclose the property just like a mortgage foreclosure. The second option is a personal money judgment against the owner. Many times an owner will file bankruptcy after being delinquent to the association as they are no longer financially stable or for a variety of other reasons. The amounts that are included in a bankruptcy start from the date the owner files for the bankruptcy and go backwards. Any assessments due after the date of filing are not included in a bankruptcy automatically. In the past, after an owner files for bankruptcy the association would have likely been limited by an order for relief from stay to filing a lien foreclosure only against the property for the assessments due after the date the bankruptcy was filed, but the tides are changing. A recent Bankruptcy Court case has expanded the association’s toolbox for handling an owner who does not pay assessments.

The case is In re Montalvo, 2016 WL 769997 (Bankr. M.D. Fla. Feb. 25, 2016) (Jennemann, J.), the Middle District of Florida made its first order on the issue of personal liability of an owner for assessments that come due after filing for bankruptcy. Up until this point, many Bankruptcy Court Judges only allowed associations to proceed against the property itself and not the individual owners for assessments that come due after the bankruptcy filing date. Under that type of order, an owner would get a free ride from the bankruptcy and then a second free ride after the bankruptcy until either the mortgage holder or the association finally foreclosed on the property. In the case that a mortgage holder foreclosed in a reasonable amount of time, the Association would be left with no recourse for those assessments.

However, that free ride is over – the Court clarified that the relief from personal liability will only come from a change in title, not just surrendering the property on paper in the bankruptcy. That owner remains personally responsible for every assessment that comes due while he or she is owner, even after they file for bankruptcy. Adding this case to In Re: Metzler, Case No. 8:12-bk- 16792-MGW Chapter 13 and In Re: Patel, Case No. 8:13-bk- 09736-MGW Chapter 7 (Bankr. M.D. Fla. May 15, 2015), once the owner surrenders their property in a bankruptcy, they are not entitled to fight the foreclosure action and until there is a transfer of title, the owner is still personally responsible for the on-going assessments. Together these cases give the association tools to use that will help in the recovery of a larger portion of past due assessments, even when the bank is moving forward. Next time your association has an owner that files for bankruptcy, remember that you may have a few more options than you think.

Written by Erin A. Zebell, Esq Originally posted at Community Update by Becker and Poliakoff

New HUD Guidance Limits the Use of Background Checks for Associations to Prohibit Discrimination

On April 4, 2016, HUD published guidance limiting housing providers’, including Associations’, use of criminal records in qualifying potential purchasers, tenants and occupants under the Fair Housing Act. What does this mean for Associations? It should be noted at the outset that HUD Guidance is not binding law, but it interprets how the law may apply to certain situations. As with any new guideline, the legal ramifications will develop on a case-bycase basis as matters are heard in court and the guidance is considered.

Background

The federal and Florida Fair Housing Acts (“FHA”), in part, prohibit discrimination in the sale or rental of dwellings based upon race, color, religion, sex, disability (handicap), familial status or national origin. Discrimination claims are evaluated under a disparate treatment or disparate impact analysis. Disparate treatment occurs where an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion. These claims generally involve intent. Disparate impact claims do not require a showing of intent or malice, but rather acknowledge fault based upon the effects of certain conduct or policies. Disparate impact claims usually rely on statistical data and analysis to establish that a policy that appears facially neutral actually has a disproportionate effect on a protected class.

HUD’s new fair housing policy regarding background checks is one of the first regulations using the disparate impact standard since the Supreme Court’s landmark case last summer in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc. The Supreme Court unequivocally ruled that HUD and other agencies may use disparate impact as a cognizable cause of action to redress alleged discrimination.

HUD’s Guidance Regarding Background Checks

HUD states that this guidance was issued “concerning how the Fair Housing Act applies to the use of criminal history by providers or operators of housing and realestate related transactions.” At first blush, it is unclear how the FHA applies to this issue since having a criminal record is not a protected class. HUD explains that while having a criminal history is not a protected characteristic, criminal history-based restrictions on housing opportunities violate the Act if, without justification, their burden falls more often on renters or other housing market participants of one race or national origin over another. Using statistical data, HUD explains that nearly one-third of the United States population has a criminal record of some kind. “As of 2012, the United States accounted for only about five percent of the world’s population, yet almost one quarter of the world’s prisoners were held in American prisons.”

Importantly, in the United States, African Americans and Hispanics are arrested, convicted and incarcerated at rates disproportionate to their share of the general population. Accordingly, criminal recordsbased barriers to housing are likely to have a disproportionate impact on minority members searching for housing. While HUD recognizes that there are certain situations in which a criminal history could warrant a denial of housing, the policy must be supported by a legally sufficient justification. In other words, where a policy or practice that restricts housing based upon criminal history has a disparate impact on members of a protected class, such as race or national origin, the policy or practice will violate the FHA if it is not necessary to serve a “substantial, legitimate, nondiscriminatory interest of the housing provider”.

It is important to note that this guidance does not entirely prohibit Association’s from disqualifying those with previous criminal records. Those convicted of violent crimes or felonies may still be disqualified from some kinds of housing under certain conditions. HUD’s guidance provides a three part test to evaluate whether or not the policy or practice is discriminatory.

In the first step of the analysis, a person or agency must file a complaint and prove that the criminal history policy has a disparate impact in a group of people because of their race or national origin. The complaining party or agency must present evidence, such as local, state, and national statistics, to prove that the policy disproportionately affects minorities and other “protected classes” under the Fair Housing Act.

Once a plaintiff or agency establishes through statistical data that a policy or practice disparately impacts people based upon race or national origin, the burden then shifts to the Association to demonstrate that the policy is justified – meaning – it is necessary to “achieve a substantial, legitimate, nondiscriminatory interest of the provider.” The Association must use statistics and evidence to prove that the goal of the policy may not be achieved by other means. HUD notes that the interests that underlie a criminal history or practice often involve the protection of other residents and their property. “Ensuring resident safety and protecting property are often considered to be among the fundamental responsibilities of a housing provider, and courts may consider such interests to be both substantial and legitimate….” The Association must be able to demonstrate, through reliable evidence, that its criminal history policy or practice actually assists in protecting residents’ safety or property.

Bald generalizations and stereotypes that people with arrest or conviction records pose a greater threat than those without such a record are insufficient to satisfy this burden. It should also be noted that HUD explicitly states that a policy or practice of refusing housing based upon one or more prior arrests, without convictions, cannot satisfy the burden of showing the necessity of the policy. Since an arrest, in and of itself, does not establish that a crime was committed, it cannot be used to exclude potential owners, tenants or occupants.

Similarly, “a housing provider that imposes a blanket prohibition on any person with any conviction record – no matter when the conviction occurred, what the underlying conduct entailed, or what the convicted person has done since then – will be unable to meet this burden.” A criminal history policy or practice must be narrowly tailored and must consider the nature, severity and recency of the crime in order to satisfy step two of the test

The third step shifts the burden back to the plaintiff or agency to prove that the housing provider’s interest could be served by another practice that has a less discriminatory effect. HUD suggests that the housing provider should conduct an “individualized assessment” of relevant mitigating factors instead of categorical exclusions. These factors might include the facts or circumstances surrounding the conduct; evidence that the applicant has maintained a good tenant history before or after the conviction; and evidence of rehabilitation efforts. This requires a subjective analysis of the facts surrounding each individual crime and the applicant him/herself. However, those convicted of the illegal manufacture or distribution of a controlled substance can be refused housing without any liability under the FHA. This does not include convictions for possession of drugs.

It goes without saying that an Association may discriminate against any person based upon any of the protected classes. Criminal history cannot be used as a pretext to exclude certain protected class members. For example, a policy of refusing housing to African American’s who have drug distribution convictions, while allowing whites with the same conviction to reside in a community is considered intentional discrimination.

To avoid the inherent pitfalls, to the extent possible, the best practices are:

• Do not impose blanket bans on renting to those with criminal history or arrest records.

• In analyzing a conviction, the Board must consider the nature and severity of the crime and how long ago the criminal conduct took place. • Educate and train all those who will come in contact with applicants concerning these issues.

• Keep screening policies pertaining to arrest records and criminal history specifically related to the safety of persons and property. The policy must distinguish between criminal conduct that indicates a demonstrable risk to resident safety and property (such as violent crimes) and criminal conduct that does not.

• Use a standard screening policy in compliance with Fair Housing and HUD regulations, and apply it equally to anyone who applies.

 

Written by JoAnn Nesta Burnett, Esq. Originally posted on Becker & Poliakoff Community Update

Grant Funding Available Now for Wind Mitigation Retrofits for Vulnerable Condominium Community in Florida

FAIR (Florida Association for Insurance Reform) is seeking a low to moderate income condominium community to benefit from a Residential Construction Mitigation Program (RCMP) grant from the Florida Division of Emergency Management.  The $194,000 grant will be used to supplement the cost of wind mitigation improvements that increase community safety and reduce insurance premiums and energy costs.  Senior communities receive preference.

Funding must be used for a systemic approach to wind mitigation that involves the entire residential structure; for example, replacing roof coverings as well as installing wind-resistant windows and doors.  Grant money will be awarded to residents with the most financial need.  PACE (Property Assessed Clean Energy), grant assessments, or other financing, can be used to finance the balance of the project costs.

FAIR will use the grant-funded project as a case study to present options and strategies for wind mitigation, creating a blueprint for community associations throughout Florida on how to plan and execute similar wind mitigation projects using a combination of PACE financing, grant money, and other funds to finance the improvements.  Actual insurance and energy savings will be documented to provide better guidance on cost benefits and payback periods.

If your condominium association is a senior (55+) and/or low to moderate income community in Florida and is interested in this grant funding, please contact FAIR at (754) 200-4538, mdeen@floridainsurancereform.org.  The deadline is Monday, December 12, 2016.

Before applying for the grant, please be sure that your Board has a clear understanding as to whether there are any requirements for an owner vote for alterations to the roofs, windows, and doors.  Contact your association attorney if you have any questions.

 

Originally posted on Florida Condo and HOA Law Blog