Can or Should Community Associations Impose Firearm Regulations through Governing Documents

The recent senseless slaughter of school children in Parkland, Florida has fueled and reignited the long-simmering debate about gun control in our society. Community associations are not immune to violent tragedies, including gun deaths.

We are all familiar with the case involving Trayvon Martin, a teenager who was shot and killed by a neighborhood watch volunteer. In 2012, David Merritt, president of the Spring Creek Homeowners Association, called a homeowners association meeting to order. Approximately 30 minutes later, Merritt, and former president of Spring Creek Marvin Fisher, would be fatally shot by their neighbor, Mahmood Hindi. The dispute between Hindi and Spring Creek involved an unapproved driveway and fence installed by Hindi. Hindi was charged with murder, but committed suicide in jail prior to his trial. Other examples of violence within mandatory membership communities can readily be identified.

It is not the intention of this article to argue whether additional governmentally-imposed gun control is desirable, and if so, what that would entail. The focus today is whether community associations can, and should, impose firearm regulations through their governing documents.

While the “can” issue is a bit complicated, the “should” issue is perhaps easier to discuss. In general, community associations do not owe residents the duty to prevent criminal actions of third parties. However, that rule of law has been swallowed up by exceptions, mostly focusing on whether the association knew or should have known of the potential for third party violence.

In my view, one of the worst things a community association can do is impose regulations aimed at personal safety and then not enforce them. For example, let us assume that a board adopts a rule prohibiting lawfully licensed persons from carrying concealed weapons into association meetings. Let us also assume for the sake of discussion that such a rule would be upheld as legally valid. How would the association enforce such a rule? I doubt most organizations are going to install metal detectors at the door of their meeting room. If an incident occurs notwithstanding such a rule, it seems to me that the association is in a much worse legal position than simply not having had a rule at all.

As to the “can” aspect of the equation, community associations are not governmental entities for the purpose of the protections found in the United States Constitution, its Bill of Rights, or other amendments to the Constitution. On its face, the Second Amendment does not apply to community associations simply because an association is not a government actor.

However, and the law is not particularly well-settled on this point, it appears that the trend is that if an association uses a court to address an issue with constitutional implications, “state action” can be found to exist, meaning that the regulation would be subject to constitutional scrutiny. For example, in the recent case of Fox v. Hamptons at Metrowest Condominium Association, Inc., a Florida court of appeal struck down a trial court’s order that prohibited a unit owner from publishing blogs and website postings about the board of directors and the association. The appellate court found that the prohibition against future communications was a “prior restraint of free speech” in violation of the First Amendment to the U.S. Constitution. The apparent theory for applying the Constitution goes back to a 1948 U.S. Supreme Court case finding that the enforcement of private covenants which contained racial restrictions in a state court was tantamount to “state action.”

The reach of the Second Amendment is a matter of great debate, both among pundits and constitutional scholars. The U.S. Supreme Court’s 2008 ruling in District of Columbia v. Heller, a 5-4 decision, is often at the center of these debates. In Heller, the court found that an absolute prohibition against the ownership of handguns held and used for self-defense in the home was a violation of the Second Amendment. The court left open the possibility that there may be limits on the reach of the Second Amendment, noting that it does not necessarily confer “a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.”

So where does this leave community associations? In my view, certain regulations would be upheld, and others would not. Whether regulation (or what type of regulation) is a good idea is a serious issue for the board to consider.

Originally posted on floridacondohoalawblog.com and written by Joseph Adams

To Record or Not Record? That Is The Question!

Community association boards often ask the question of whether they must record a claim of lien on a property in order to protect the association’s right to recover past due assessments on the property. Although the answer to this question changes based on the specific set of facts controlling each scenario, there is at least one scenario where the answer is NO!

In Calendar v. Stonebridge Gardens Section III Condominium Association, Inc., the association was faced with a scenario where a property was sold at a tax deed sale and there were surplus funds in the registry as a result of the tax deed sale. Pursuant to §§197.582(2) and 197.522, Fla. State., the association was entitled to file a statement of claim against the surplus funds. However, the association did not have a claim of lien recorded in the public records at the time of the tax deed sale. The association filed a statement of claim against the surplus funds, as did the prior homeowner. The prior homeowner argued that the association was not entitled to the surplus funds as the association did not have a recorded claim of lien on the property. The trial court disagreed and entered an order awarding the surplus funds to the association. The prior owner appealed.

The Fourth District Court of Appeal affirmed the trial court’s ruling, citing to the case of Bessemer v. Gerstein, 381 So.2d 1344, 1348 (Fla. 1980) and the specific language found in §718.116(5)(a), Fla. Stat, which states:

The association has as lien on each condominium parcel to secure the payment of assessments. [T]he lien is effective from and shall relate back to the recording of the original declaration of condominium. However as to first mortgages of record, the lien is effective from and after recording of a claim of lien in public records of the county in which the property is located.

Based on this language and the holding in Bessemer that the owner’s acceptance of a deed referencing the recorded Declaration of Condominium puts the owner on notice of the lien provisions found in the Declaration, the appeals court found that the association had a statutory lien on the subject property and that this was sufficient to protect the association’s ability to collect the surplus funds from the tax deed sale.

While in this case the appeals court ruled in favor of the association despite the lack of a recorded claim of lien, uncertainty remains as to whether the statutory lien alone will always protect the association’s ability to collect past due assessments. In its opinion, the appeals court references scenarios in which an association also needs to have a recorded claim of lien to recover past due assessments, namely scenarios where a first mortgagee is also asserting a claim. Given this uncertainty and the various fact-specific scenarios faced by associations, obtaining the advice of counsel on this issue is the best way to protect the association and its membership.

Originally posted on floridacondohoalawblog.com and written by K. Joy Mattingly

Owner’s Don’t Have Right to Call in to Board Meetings

Q:        My condominium association is mostly composed of seasonal owners and every member of the board leaves town for the summer. At the last board meeting, the board announced that it intends to post notice of upcoming board meetings over the summer on the condominium property but that all of the board members will be attending the meeting by conference call. While we have a speakerphone in our meeting room, the owners are being told they cannot call into the conference call but have to attend the meeting in the office. Aren’t seasonal owners also entitled to call into the board meeting, as well?  (F.W. via e-mail)

A:        No. The Florida Condominium Act requires that board meetings be properly noticed. Other than certain specific board meetings, such as board meetings to levy assessments or adopt rules regarding unit use, the notice must only be posted at least 48 hours before the meeting on the condominium property. Further, owners are entitled to attend meetings and may speak at the meeting as to all designated agenda items.

The statute contemplates that the meetings will take place at a specific location and that notice of that meeting need only be posted on the condominium property.  The statute provides that board members may participate in a meeting via telephone, video conferencing or similar real-time electronic or video communication, and such participation counts towards the quorum. Board members participating by remove means may vote as if they were physically present in the room. The Condominium Act does not mention unit owners attending board meetings through remote means.

While the board can allow board members to participate or remote means, there is no legal requirement to do so. I am aware of a few associations which allow owners to call into board meetings, but it is certainly not the norm.

Q:        As a member of a homeowners’ association, do I have a right to review the association’s contract with its manager? I am curious to know the terms. (D.L. via e-mail)

A:        Yes. You are legally entitled to inspect the management agreement, if you make a written request to inspect the association’s official records.

Included on the list of official records that homeowners’ associations are required to maintain under the “a current copy of all contracts to which the association is a party, including, without limitation, any management agreement, lease, or other contract under which the association has any obligation or responsibility.”

While the statute provides that certain “personnel records” of association or management company employees are not subject to owner inspection, such as disciplinary and health records, this prohibition does not include written employment agreements between the association and its management company. Further, agreements between the association and its employees are also not included within “personnel records.”

The Florida Condominium Act contains similar provisions relating to official records.

Q:        Does the upcoming change to the Florida Cooperative Act mentioned in your previous article about keeping minutes apply to future minutes only, or all minutes? (H.A. via e-mail)

A:        You are referring to the amendment to Section 719.104(2)(a)4. of the Florida Cooperative Act. The current law requires cooperative associations to maintain minutes for a period of seven years. The law effective July 1, 2018 will require minutes to be retained perpetually.

In my opinion, if the association has destroyed minutes that are over seven years old, it is not a violation of the current law (though in my opinion, it is generally not a good idea). However, as of July 1, you will be obligated to retain all minutes the association has in its possession, even if over seven years old, and will be obligated going forward to maintain all minutes as part of the official records, regardless of age.

Written by Joe Adams and originally posted to the FL Condo HOA Law Blog

MyCondoNeedsAWebsite.com

In less than a year, condominium associations with 150 or more units (that do not manage a timeshare) will be required to have a website for the purpose of posting digital copies of certain official records so members can access them online.  Although it seems like a simple enough task to comply with §718.111(12)(g), Fla. Stat., there are few things to consider.

First and foremost, regardless of whether the association owns and operates the website of its own accord or will own, lease, or rent the right to operate a web page/portal from another, there are three components which go into having a website: a domain name (www.mycondoneedsawebsite.com), a website (actual web pages), and a web host (server to store the information that can be accessed from the website).  The cost of these components will become a recurring expense which must be accounted for in the annual budget. Research will need to be done to estimate the costs associated with these components well in advance of the deadline for statutory compliance.  Additionally, if the association is going to have its website hosted and operated by a management company (or a third party) it needs to ensure that it has access to the site at all times and to allow for the transition of data (and the domain name) after the relationship ends as the burden on compliance is placed on the association.  The association should have its attorneys review any agreement concerning its website to avoid hiccups in set-up and transition down the road.

Second, the association must understand what must be part of the website.  The statute requires “current” copies of various documents which are delineated in §718.111(12)(g)2, Fla. Stats.  Posting on the website is not an “in lieu of” criteria, it is an “in addition to” criteria.  In other words, just because the notice and agenda of a member’s meeting is posted on the website does not do away with the requirements to mail/deliver the notice to members or the requirement to post the notice conspicuously at the association.  Also if any of the documents which are to be posted on the website, contain information which should be protected from disclosure, the document must be redacted prior to posting.

Third, the association must understand “who” has access and “how” it is given.  The website must be available on the internet such that anyone typing the domain name in a search bar, can find it.  The website must also have at least one sub-page/portal which cannot be accessed by the general public.  This protected page must only be accessible to owners and association employees through a username and password issued by the association.  In order for an owner to obtain access they must make a written request.  Since access is limited to owners (not their representatives, tenants, etc.) it is important to consider providing owner specific access which can be easily revoked upon conveyance of the unit.  The only exception to the password protection requirement concerns notices of member meetings which are to be posted on the main website in plain view or via a conspicuously visible link from the main page to a page titled Notices.

Two additional points concerning websites for Associations to keep in mind.  At present an association with less than 150 units which has a “voluntary” website is not required to comply with the new statute.  It is possible however for this to change at any time.  Additionally, even though the new statute provides access to some official records, there is no provision which prohibits an owner from making a written inspection request of those very same records. As such, even after July 1, 2018, if an association receives a written request to inspect records (which are otherwise accessible via the website), it must still make them available for inspection (physically or “electronically via the Internet or … on a computer screen and printed upon request”) within five (5) working days or risk monetary damages. §718.111(12)(b) and (c), Fla. Stats.  This may be as simple as ensuring the owner or their authorized representative has access via a user name and password to the website, confirming that access in writing to the requestor and later revoking any access given to the representative but not the owner.  The key is to have a uniform system for dealing with such inspection requests which serves as preliminary proof of compliance in a dispute.  Here too, associations should call on their counsel for assistance.

Written by Marilyn Perez-Martinez and originally posted on the FL Condo HOA Law Blog

Why is a Plat so Important?

As an owner of residential property in Florida, you are aware that your community is probably subject to a unique set of “governing documents.” Typically these will include a Declaration of Covenants and Restrictions, Association Articles of Incorporation and Bylaws, and various Rules and Regulations.

Less well known is the statutory process of “platting,” which is required whenever a developer wishes to subdivide a large piece of property into smaller parcels and tracts. These smaller areas become the residential lots, streets and parks of a new residential sub-division.

Creation of statutory subdivision plats is governing by Florida Statute 177 Part 1. The statute contains specific requirements for both drafting and filing a plat. Basically a plat is a map of the subdivision of lands, which is supposed to be an exact representation of both the subdivision and other information required by the statute and any local ordinances. The next time you have an issue with boundaries in your community, the extent or purpose of an easement, or whether a portion of property is within your property, check your plat in addition to other governing documents, it has a wealth of information.

Every plat of a subdivision must be accompanied by a survey of all the boundaries of the platted lands. The survey must be performed under the supervision of a professional surveyor. Each plat must be accompanied by a title opinion of a Florida attorney, abstractor or title company which shows that all the owners of the property are executing the plat, and that all mortgages on the property have been satisfied.

The statute lists 29 specific requirements for each plat, including the size of the plat and the color ink that must be used. In working with your community plat (which is recorded in the Public Records of the County in which your community is located) the following requirements can be particularly useful:

  • A prominent “north arrow” must be drawn on every page to allow you to orient the map.
  • Sufficient data must be shown on the plat to describe the boundaries of every residential lot, block, street, easement, park and all other areas shown on the subdivision plat.
  • Properties which adjoin the subdivision must be identified by subdivision title, plat book and page. If adjoining land is unplatted, that must also be designated.
  • Both the location and width of all easements must be shown either on the plat or in the notes or legend on the plat. The specific intended use of each easement must also be clearly stated.
  • If there is an interior parcel within the community that is not part of the plat, it must be clearly labeled; “Not A Part Of This Plat”. Without such a label, all property within the boundaries of the platted subdivision are included.

If your community decides to have another survey of any portion of the property, it is important to remember that the original surveyor who prepares a subdivision plat is presumed to have been correct. For this reason, the new survey will only locate the original monuments, points and lines of the original survey. If for any reason there is a discrepancy between what the subdivision plat shows and what the original survey indicates, the monuments placed on the ground as part of the original survey have precedence.

Originally posted on floridacondohoalawblog.com and written by Harry W. Carls ESQ

Legislative Review Wrap-Up

This week we conclude our annual review of 2018 legislation affecting Florida community associations, with a review of the amendments to Chapter 712 of the Florida Statutes, the Marketable Record Title Act, or MRTA, which become effective on October 1, 2018.

MRTA is primarily intended to facilitate real estate transactions, by eliminating “stale claims” against real property. However, the courts have found that covenants and restrictions of a homeowners’ association can be extinguished by MRTA. The general yardstick for MRTA extinguishment is thirty (30) years from the “root of title.” Though usually not the exact extinguishment date for most parcels, the most prudent yardstick for determining potential MRTA extinguishment is 30 years from the recordation of the original covenants and restrictions.

MRTA includes a process that allows residential homeowners’ associations to preserve the covenants and restrictions to prevent extinguishment. There is also a process in the Florida Homeowners’ Association Act, Chapter 720 of the Florida Statutes, which allows a community to “revitalize” covenants and restrictions that have been extinguished by MRTA.

One of the most significant changes regarding MRTA is actually found in the Homeowners’ Association Act. The new law requires that at the first board meeting after the annual members’ meeting, excluding the organizational meeting, the board shall consider the desirability of filing notices to preserve the covenants or restrictions affecting the community or association from extinguishment under MRTA.

Therefore, pursuant to the new statute, the board of every homeowners association, must annually consider the impact of MRTA even if the 30 year deadline is not imminent, or even if a preservation notice has already been filed.

Updates to Definitions in Chapter 712

  • Creates a new definition for “community covenant or restriction” to mean any agreement or limitation contained in a document recorded in the public records of the county in which a parcel is located which:
  • Subjects the parcel to any use restriction that may be enforced by a property owners’ association; or
  • Authorizes a property owners’ association to impose a charge or assessment against the parcel or the parcel owner.
  • Changes the term “homeowners’ association” to “property owners’ association” and defines the term to include a homeowners’ association as defined in Section 720.301, a corporation or other entity responsible for the operation of property in which the voting membership is made up of the owners of the property or their agents, or a combination thereof, and in which membership is a mandatory condition of property ownership, or an association of parcel owners which is authorized to enforce a community covenant or restriction that is imposed on the parcels.
  • Amends the definition of “parcel” to mean any real property that is subject to any covenant or restriction of a property owners’ association (and no longer requires that the property be used for residential purposes).

Filing Notice to Preserve

  • A property owners’ association may preserve and protect a community covenant or restriction from extinguishment by the operation of MRTA by recording, at any time during the 30-year period immediately following the effective date of the root of title:
    • A written notice in accordance with Section 712.06 of MRTA; or
    • A summary notice in substantial form and content as required under Section 720.3032(2) of MRTA; or an amendment to a community covenant or restriction that is indexed under the legal name of the property owners’ association and references the legal name of the property owners’ association and references the recording information of the covenant or restriction to be preserved.
  • The new law also includes a form which satisfies the notice obligation and constitutes a summary notice sufficient to preserve and protect the referenced covenants and restrictions from extinguishment under MRTA.

Revitalization of Covenants and Restrictions by Parcel Owners Not Subject To A Homeowners’ Association

  • Creates a process for communities not governed by a homeowners’ association to revitalize covenants and restrictions to revive covenants or restrictions, with certain exceptions.

Written by Joe Adams and originally posted on the FL Condo HOA Law Blog

Board Members Can Be Recalled Without Cause

Q:        I have heard that a condominium board member can be removed from the condominium association board by a process called recall. What causes can be used to justify the recall? (C.Q. via e-mail)

A:        Section 718.112(2)(j) of the Florida Condominium Act states that any board member can be recalled and removed from office with or without cause by a vote or written agreement of a majority of all voting interests.

While cause could be specified to justify the recall of a board member, just cause does not have to be shown.

After a director is recalled, the law allows the board to fill the director’s vacancy by appointing a new director, pursuant to a majority vote of the remaining directors, even if it is less than a quorum. The appointed director then serves the remainder of the recalled director’s term. A different process is used if a majority of the board, or the entire board, is recalled.

Homeowners’ associations generally use a similar process for recall.

Q:        What happens if there is a tie between two candidates running for a board of directors’ seat at the annual meeting? Do both candidates win? (E.A. via e-mail)

A:        No. The Florida Administrative Code, Rule 61B-23.0021, states that if two or more candidates for the same position receive the same amount of votes, the association must conduct a runoff election.

At the runoff election, the only eligible candidates are the candidates who received the tie vote at the previous election. The runoff election cannot be held less than 21 days or more than 30 days after the date of the election where the tie vote occurred.

The Code also requires the association to send notice of the runoff election within 7 days of the election where the tie occurred. The notice must be mailed or personally delivered to the members, and must include the date of the runoff election, a ballot, required envelopes, and copies of any candidate information sheets previously submitted to the association by the runoff candidates.

Q:        The board of my condominium association is considering adopting new rules, including rules which change some of the restrictions contained in the condominium declaration. Can board rules change the declaration of condominium? (M.O. via e-mail)

A:        No. Board made rules cannot conflict with any right which is expressly granted or inferable from the declaration. Further, board rules must be “reasonable.” The rules must also be adopted in a procedurally correct manner.

Q:        Are reserve accounts supposed to be kept in separate accounts? In other words, should the roof reserve be in one account, the painting reserve be in another account, and so on. (D.R. via e-mail)

A:        No. There is no requirement in the law prohibiting the “comingling” of reserve funds, and they are most often kept in a single account (but should also be kept within federal insurance limits).

Section 718.111(14) of the Florida Condominium Act does prohibit “comingling” reserve and operating funds. However, for investment purposes only, a multicondominium association may commingle the operating funds of separate condominiums with the reserve funds of separate condominiums.

Q:        Can a candidate running for a homeowners’ association board of directors seek and hold proxies to vote for themselves? (T.M. via e-mail)

A:        Yes. Assuming that the bylaws permit proxy voting in the election of directors (which is prohibited in the condominium context) and absent a limitation on the number of proxies a particular person can hold, there is no prohibition in the law against this.

Most associations that use proxies in elections, however, use a “limited proxy,” so that the person soliciting the proxies would have no discretion on how the votes should be cast.

 

Written by Joe Adams and originally posted on FL Condo HOA Law Blog

Community Association Legislative Guide, 2018

CALL’s Florida Community Association Legislative Guide 2018 is now available. The Guide is applicable to all three types of shared-ownership communities (condominiums, cooperatives, and homeowners’ associations).

Of the twenty-plus community association bills filed during the 2018 Legislative Session, just two community association bills were passed and approved by Governor Scott: HB 617, Relating to Covenants and Restrictions, and HB 841, Relating to Community Associations. The volume of bills filed, however, shows that Florida’s legislators remain very interested in community association legislation and how it impacts their constituents. This year’s Guide focuses on the two bills that passed but also discusses a few “miscellaneous” bills that passed that may also  affect your association.

The 2018 Guide features the following:

  • An overview letter from me
  • A summary of the community association bills that were signed into law
  • A summary of the miscellaneous bills that were signed into law
  • A summary of the community association bills that did not pass
  • A list of actions we recommend that you, as a community association board member, should take to comply with all of the new laws
  • A letter from Donna DiMaggio Berger, a shareholder with the firm and CALL’s Founding Executive Director

Please click on the following link to download your copy: Florida Community Association Legislative Guide 2018

We trust you like our new look and will find the Guide easy to use and informative.

Written by Yeline Goin and originally posted on the FL Condo HOA Law Blog