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.

 

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

Can a Florida HOA Reject the Votes of a Tenant Proxyholder?

Question: I recently attended the annual meeting of my homeowners’ association. Many absentee owners sent in proxies. The association’s attorney advised the association to reject several proxies because they named a tenant as the proxyholder. The attorney said that only association members may serve as proxyholders. Is this true and should these proxies have been disregarded? (T.Y. via e-mail)

Answer: It depends. There is nothing in theFlorida Homeowners’ Association Act (Chapter 720 of the Florida Statutes) that specifies or limits who may serve as a proxyholder. The statute only provides that, to be valid, a proxy must be dated, must state the date, time, and place of the meeting for which it was given, and must be signed by the authorized person who executed the proxy.

The Florida Not For Profit Corporation Act (Chapter 617 of the Florida Statutes) similarly contains no limitations on who may serve as a proxyholder. Rather, this law provides that a member may vote by proxy executed in writing by the member or by his or her duly authorized attorney in fact. The only reason provided in Chapter 617 for rejecting a proxy appointment is if the secretary or other officer or agent authorized to tabulate votes, acting in good faith, has a reasonable basis for doubting the validity of the signature on it or the signatory’s authority to sign for the member.

While there is no legal limitation on who may serve as a proxyholder, it is possible (and somewhat common) that the association’s bylaws may do so. Such a provision, if properly adopted, in my opinion is valid. Many of my association clients include proxy limitations when updating their bylaws, but such restrictions are far from universal.

 

Originally posted on the Florida Conda HOA Law Blog

Wildlife Dangers Create Association Liability Concerns in Florida Communities

Question: We live in a gated community with a golf course. There are a number of lakes and ponds. Alligators seem to come and go, but are spotted frequently. In light of the recent tragedy that has been widely reported in the news, there has been discussion about posting warning signs. What are your thoughts on this? (A.L. via e-mail)

Answer: The association, as the owner of property, can be held liable if someone is injured on the property due to the association’s negligence. Negligence includes allowing licensees or invitees to enter an area of the owner’s property where risk of injury by a dangerous condition is foreseeable, but not readily apparent, and not warning the licensees or invitees of the danger.  The property owner has a duty to maintain the property in a reasonably safe condition and a duty to prevent injury through the issuance of adequate warnings of known, but hidden, dangers.

In 1996, Florida’s Second District Court of Appeal found that, generally speaking, the law does not require the owner or possessor of land to anticipate the presence of or guard an invitee against harm from animals ferae naturae (natural wild animals) unless such owner or possessor has reduced the animals to possession, harbors such animals, or has introduced onto his premises wild animals not indigenous to the locality. In the absence of reasonable foreseeability of the danger, the court found in this case that there was no duty on the part of a city to guard an invitee against a shark attack, or to warn of the possibility of such an occurrence.

In a 2004 decision, the Second District ruled that a landowner owes two duties to a business invitee: (1) to use reasonable care in maintaining its premises in a reasonably safe condition, and (2) to give the invitee warning of concealed perils that are or should be known to the landowner and that are unknown to the invitee and cannot be discovered through the exercise of due care. The court found that a hospital did not violate its duty of ordinary care to maintain the hospital in a reasonably safe condition, even though a patient was bitten by a black widow spider in the emergency room. The evidence showed that the hospital had maintained the facility in a reasonable manner, did not know that a black widow spider was on its premises, and had no previous incidents with black widow spiders.

The precedent most directly on point is a 1986 decision from Florida’s First District Court of Appeal. This case involved a University of Florida student bitten by an alligator while swimming in Lake Wauberg, a recreational facility operated by the University. In a split decision, the court found that the injured swimmer disregarded clear warning signs on the premises which warned of the dangers of alligators. The court also emphasized that the student ignored a “No Swimming” sign where the attack occurred. Thus, the University was found not to be liable for the injuries.

If your association knows of alligators on the premises, reasonable precautions should be taken in concert with advice from the association’s legal counsel and its insurers. Reasonable precautions might include, among other things, the posting of signs warning of the possible presence of alligators. Consideration might also be given to addressing other dangerous animals that might inhabit the property, such as poisonous snakes.

In addition, your association can contact the Florida Fish & Wildlife Conservation Commission’s nuisance alligator program for removal of alligators that might constitute a nuisance or pose a threat. The nuisance alligator hotline can be reached at 866-FWC-GATOR (866-392-4286), and more information about the program is available online at www.myfwc.com.

 

Originally posted on Florida Condo HOA Law Blog

Hurricane Shutters and Florida Condominiums

Question: I am preparing to return to my northern home for the summer and intend to deploy the hurricane shutters on my condominium unit. However, the association is advising me that I cannot deploy my hurricane shutters unless there is a storm warning. Is this permissible? (B.M. via e-mail)

Answer: Since hurricane season began on June 1, this is a timely question. Section 718.113(5) of the Florida Condominium Act provides that each board of directors of a residential condominium must adopt hurricane shutter specifications for each building within each condominium operated by the association which shall include “color, style, and other factors deemed relevant by the board.” The statute does not speak to the issue you have raised.

The courts have not addressed this issue either.

However, there is at least one DBPR arbitration decision (which, technically, does not have the binding force of “law”) that found that a rule that prohibiting the deployment of hurricane shutters except when a storm was “imminent” was unreasonable. However, the arbitrator seemed to indicate that a rule that provided that the association would undertake to deploy the hurricane shutters in the event of a storm might be enforceable.

Some feel that a building being “shuttered up” for extended periods is aesthetically displeasing and may invite those with criminal intent to view the building as an opportunity. On the other hand, it is not necessarily feasible for an absentee owner to be able to assure that his or her shutters are deployed when a major storm is approaching, as things tend to get chaotic during emergency preparations.

Originally posted on Florida Condo HOA Law Blog

 

Associations are Not Required to Trim Landscaping at Owner’s Request

Question: I live in a six-story condominium. My unit is on the third floor and I have, or used to have, a view of the Gulf of Mexico. There are several trees outside my unit that have become overgrown and have severely limited the view of the Gulf from my unit. I asked the board to have the trees trimmed to improve my view. They rejected my request by saying that the landscaper recommended the trees not be trimmed at this time. I am considering putting my unit up for sale and the lack of a Gulf view will be a problem. Can I demand the association trim the trees so I can get my view of the Gulf back? — T.E., Naples

Answer: Probably not. Florida courts have held that there is no inherent “easement to a view.” More than 50 years ago, there was an epic legal battle in Miami Beach between the Eden Roc Hotel and the Fontainebleau Hotel regarding the right to a view. The Eden Roc objected when the Fontainebleau proposed to construct an additional 14 stories that would shade the pool and sunbathing areas of the Eden Roc. The court ruled that the Eden Roc did not have an easement of light that would prevent the Fontainebleau from adding the additional stories.

The Fontainebleau case involved neighboring landowners, a situation somewhat different from yours legally. However, several condominium arbitration decisions have addressed similar disputes and have held that a condo unit owner does not have a specific right to an unobstructed view, at least absent an expression of that right in the declaration of condominium.

These cases have confirmed that the subject associations were not required to trim their landscaping simply because an owner demanded it. However, this specific issue has yet to be squarely addressed in the courts. Although arbitration decisions are not afforded the same weight as appellate court cases, they are persuasive authority and will be specifically relied upon in any condominium arbitration proceeding.

David G. Muller is an attorney with the law firm of Becker & Poliakoff, P.A., which represents community associations throughout Florida, with offices in Naples, Fort Myers and 11 other Florida cities. The firm focuses a substantial amount of its practice on condominium and homeowners association law.

Originally posted on Florida Condo Law HOA Blog

 

Importance of Preparing for Hurricane Season

Today, Wednesday June 1, marked the official start of the 2016 Atlantic hurricane season that runs through the end of November. June 1 should serve as an important reminder about the need for individuals to be prepared for any emergency. This may be the start of the hurricane season, but emergencies can happen anytime, anywhere, and everyone needs to be prepared – not just those folks in hurricane-prone states.

Florida residents should check their personal preparations and emergency kits, note any alerts or messages from local emergency officials, and rehearse emergency evacuation routes. Emergency kit supplies should last at least seventy-two (72) hours.

Important items to have ready in case of an emergency include a battery-powered radio, flashlight, extra batteries, medicine, non-perishable food, hand-operated can opener, utility knife and first aid supplies. All important documents should be copied and stored in a waterproof bag. These may include medical records, contracts, property deeds, leases, banking records, insurance records and birth certificates.

When preparing for hurricane season and potential emergencies, the needs of all members of a household should be considered. If a household includes a person with a disability, special steps to assist them may be necessary and should be incorporated into all emergency planning.

Pets also require special handling. They may become agitated during the onset of a storm, so a pet carrier is a must for safe travel. Pet owners should research pet boarding facilities now within a certain radius of where they may evacuate, since animals may not be welcome in all shelters or hotels.

The beginning of hurricane season is also the time to ensure that their Associations maintain the proper insurance coverage, including both hazard and flood insurance coverage. Not only are homes and businesses in hurricane-prone states at risk for flooding, but inland flooding is common.
Mirza Basulto & Robbins, LLP, also reminds our Association clients to confirm that their insurance policies are in full force and effect and adjust deductibles as necessary.

We highly recommend Associations consult with their banks to obtain a line of credit or loan. In case of casualty loss, you must be prepared to cover potential expenses

As a cautionary tale, we have added a link to an article published in the Sun-Sentinel, as to the horrors of not maintaining a hazard and/or flood insurance policy. As a member of the Board of Directors, you have a fiduciary duty to the unit owners to ensure maintenance of such policies (and a personal liability if such policies are not maintained). Insurance premiums may be financed and/or loans may be obtained to finance the acquisition of such policies if not already in place. We encourage you to contact our office should you require more information in this regard.

In the event of the occurrence of any event that is covered under the Association’s insurance policies in effect, we encourage your Association to contact our firm to discuss the filing of a claim.

 

Originally posted at http://www.mbrlawyers.com/