New Term Limit Law Not Retroactive

Q: In one of your recent columns, you wrote about a new law that imposes term limits of eight years on condominium directors. Is this retroactive? (S.L. via e-mail)

A: In my opinion, no. Of course, lawyers’ opinions are just that, and what the courts have to say is what ultimately counts.

My interpretation is based on a long-standing rule of statutory construction. Florida courts have consistently held that condominium legislation is not to be retroactively applied, unless the legislatures evinces an intent that it be applied retroactively. There are certain exceptions to this rule for “procedural” and “remedial” changes to the statute.

If legislation is intended to be retroactively applied, then a second level of analysis needs to take place which largely focuses on constitutional issues. However, in the case of the new “term limit” law, there was no statement of retroactive application in the new law, so no need to consider constitutional implications.

Of further relevance is the fact that a similar law was enacted a couple of years ago (dealing with term limits on two-year terms) and most attorneys conversant in this field of law, as well as the state agency charged with enforcement of the law, took the position that it was likewise was not to be retroactively applied.

However, internal term limits contained in an association’s bylaws have been legal for a number of years, and would still be effective regardless of the recent statutory changes.

Q: My homeowners’ association recently hired a management company. While the decision to hire the management company was discussed at a series of board meetings, there was no vote by the membership for this significant cost to our association. Can the board simply hire a manager without a vote of the owners when we’ve never had one before? (J.C. via e-mail)

A: Generally, the decision to hire a management company is a decision for the board of directors. That is because the governing documents for most associations either grant this specific authority to the board, and/or provide that all corporate powers can be exercised by the board except where the statute or governing documents specifically require a members’ vote.

Typically, members are afforded the right to vote on amendments to the governing documents, election of the board of directors, the waiver or nonscheduled use of certain reserves funds, and other items as set forth in the statute or the community’s governing documents. Unless there is some specific contrary requirement in your governing documents, which would be unusual (though I do see it from time to time), the board of directors can retain or disengage a manager or management company, without a vote of the membership.

Q: My condominium association holds a number of social events throughout the year and in order to help pay for the cost of these events, our social committee holds various types of fundraisers including raffles and “50/50 drawings.” Some owners are now stating that these drawings are “illegal” and that someone could go to jail. Is this true? (D.G. via e-mail)

A: Your question is timely in light of recent news reports regarding a local political candidate facing allegations that they broke the law by running a “50/50 game” at a campaign event. While I am not familiar with the details of those allegations, and how the law may or may not apply there, it does present an opportunity for community associations to review the issue.

Chapter 849 of the Florida Statutes regulates gambling in Florida. Section 849.09 specifically prohibits a person from promoting or conducting any “lottery for money or anything of value.” This section of the law essentially prohibits all raffle-type games including “50/50 drawings.” While there are exceptions for raffles conducted by certain charitable organizations, these exceptions do not apply to community associations.

Violation of Chapter 849 by holding a raffle or lottery is a first degree misdemeanor for the first offense. Subsequent violations can result in felony criminal charges.

Originally posted on floridacondohoalawblog.com and written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. 

Utility Billing: 6 Things Property Managers Need to Know

If you’re a multifamily or HOA property manager, billing your residents or homeowners for their utility use has likely crossed your mind. Many properties have already started utility billing programs. The prevalence of this practice has grown as utility rates and fees continue to rise, impacting a property’s cash flow and bottom line. Whether you’re billing already or interested in starting a utility billing program, here are some important considerations to keep in mind:

1. Pick the Right Calculation Methodology

Choosing the right pricing methodology is one of the first and most important decisions you need to make when undergoing or updating your utility billing program. A flat fee for all residents would seem like the simple, safe choice, but it requires a lot of guesswork to figure out what that fee should be. Go too low and you’re leaving money on the table. Go too high and you may “profit” from utilities, which in some jurisdictions legally classifies you as a utility, creating legal and regulatory headaches. Another downside of the flat fee model is that it encourages overuse by residents due to the “all you can eat” model. As an alternative, Ratio Utility Billing Systems (RUBS) allocate utilities based on certain factors such as unit size, and are an attractive option as long as you live in an area where this is allowed. Finally, submeters are a great option for usage-based billing. If you’re using submeters, different rates may be charged based on your jurisdiction, which you’ll want to understand as they will impact your recovery.

2. Update Your Lease Language

As the contract between the owner and the resident, your lease is required to adequately disclose the existence of your billing program and any associated fees. Your jurisdiction will likely have specific legal and regulatory requirements you must meet.

3. Communicate With Your Residents Clearly

In addition to including utility billing program details in your lease, your bills and statements must be itemized, clear, and comprehensive. There may be legal and regulatory requirements here as well. Not reflecting a specific line item properly on your resident bill can expose you to risk.

4. Keep Up with Changing and Re-interpreted Regulations

You may feel comfortable that you understand the regulations in your area today; However, when regulatory agencies turnover, laws may be changed or re-interpreted. When running a utility billing program you must keep tabs on and follow new rules. As changes arise, these may also require more/different resident notifications and lease language.

5. Understand and Abide by Conservation Benchmarking Mandates

Some jurisdictions require multifamily owners to report their utility consumption data with the EPA Energy Star Tool.  According to the website “ENERGY STAR Portfolio Manager® is an online tool you can use to measure and track energy and water consumption, as well as greenhouse gas emissions.” This tools can be used to benchmark the performance of one building or a whole portfolio of buildings, and manage energy and water use.

6. Maximize Your Cost Recovery by Capturing All Ancillary Costs

Don’t leave money on the table. Capture your source documents throughout the year and analyze your different ancillary costs such as water and sewer bills from taxes and other sources to see what you may be able to bill back. Done correctly, this can result in increasing your recovery and reducing your tax burden.

The utility billing regulatory environment is dynamic and complex. Whether you’ve kicked this process off already, or are just thinking of getting started, working with a partner who offers expertise is important. They help you take the guesswork out of the equation, so you maximize your returns while minimizing risk. If you have any questions or need some advice, feel free to contact our Resident Billing experts at PayLease at any time. As always, we’d be happy to talk with you.

 

Originally posted on www.paylease.com written by Micheal Foote

FL Division of Condos Proposes Greater Financial Penalties on Associations

Florida condominiums, cooperatives and, to a lesser degree, homeowners’ associations are subject to the imposition of fines and penalties by the Division of Florida Condominiums, Timeshare and Mobile Homes (“Division”) for a variety of mistakes and missteps.  The Division plans to pass sweeping changes to Chapter 61B-21 of the Florida Administrative Code which may go into effect in the coming weeks.

Why is this important for your Board to know?  Because many of the actions listed below occur on a regular basis in many associations that can otherwise be described as high functioning communities.

The category of minor violations has been narrowed while the category of more egregious violations has been expanded. The following violations are considered minor violations for which a Notice of Noncompliance will be issued:

  • Failing to disclose the beginning and ending dates of the period covered by the proposed budget.
  • Failing to disclose periodic assessments for each unit type in the proposed budget.
  • Distributing candidate information sheets consisting of more than one page.
  • Verifying the outer envelope information BEFORE the date of the election.
  • Failing to disclose the amount required to fully fund each reserve account as of the end of the fiscal period covered by the annual financial statements.
  • Failing to disclose the method of allocating income and expenses in the annual financial statements or turnover audit.

The following violations will result in a MINIMUM total penalty of $10-$30 PER UNIT or $1,000 whichever amount is greater. In a high rise with 350 units, a penalty for one of the following violations could cost $10,500.  As you can see, some of the violations below are much more egregious than others.

  • Failing to maintain complete accounting records.
  • Failing to maintain separate accounting records for each condominium.
  • Not passing assessments sufficient to meet expenses.
  • Collecting assessments less frequently than quarterly.
  • Not apportioning assessments correctly amongst multiple condominiums.
  • Failing to charge interest on past-due assessments.
  • Improperly excusing the developer or other owners from paying assessments.
  • Improperly amending the Declaration of Condominium to change the percentage by which the unit owners share the common expenses.
  • Imposing improper use fees.
  • Imposing late fees, transfer fees or security deposits without proper documentary authority to do so.
  • Failing to maintain adequate fidelity bonding.
  • Compensating board members or officers without proper documentary authority to do so.
  • Improperly allocating reserve requirements.
  • Failing to include a separate budget for each condominium operated by the Association as well as a budget for the Association.
  • Failing to obtain competitive bids fore each contract that exceeds 5% of the association’s budget.
  • Imposing fines and suspending use rights without proper notice and an opportunity for a hearing.
  • Allowing an ineligible person to fun for the Board.
  • Failing to adopt a budget each year.
  • Commingling reserve funds with operating funds.
  • Using Association funds for items other than proper common expenses.
  • Contracting with a service provider owned by a board member.
  • Using an association debit card for any association expenditure.
  • Failing to hold an annual election. The caveat here is that if you do not have more candidates running than open seats or if you do not have at least 20% of your eligible voters cast a ballot you will not have an election.
  • Failing to use ballots or voting machines.
  • Failing to provide space for the name, unit number or signature of the outer envelope used for elections.
  • Failing to provide timely first and second notices of the election.
  • Using improper nomination procedures in the election.
  • Holding the election at a time and place other than the annul meeting.
  • Failing to provide a candidate with a receipt for written notice of his or her candidacy.
  • Permitting ineligible candidates to be listed on the ballot.
  • Allowing members to rescind or change their previously cast election ballots.
  • Including comments from the board about election candidates in the Second Notice of Election and accompanying documents.
  • Not using an impartial committee to count the ballots.
  • Altering or editing candidate information sheets. The caveat here is that if a candidate submits a double-sided candidate information sheet or a candidate information sheet that is more than one page long, that candidate must be told that only one side of a page will be distributed.
  • Failing to place the inner envelope in a separate receptacle before being opened.
  • Not using uniform ballots.
  • Not checking the outer envelopes against a list of eligible voters.
  • Counting ineligible ballots
  • Failing to count properly cast ballots.
  • Opening outer envelopes prior to the election meeting or opening outer envelopes outside the presence of unit owners.
  • Failing to maintain official records.
  • Requiring a unit owner to pay a fee for access to association records.
  • Failing to timely provide access to records or failing to allow scanning or copying of records.
  • Improperly purchasing a unit at a foreclosure sale.

The foregoing list of violations is not inclusive and, in addition to the penalties established by the rule chapter, the Division may also seek to recover any other costs, penalties, attorney’s fees, court costs, service fees, collection costs and damages allowed by law. . There are a lot of other areas where a volunteer board can unknowingly go astray and wind up being monetarily penalized as a result. The changes being proposed by the Division to 61B-21.003 F.A.C reflect a shift in the Division’s focus from education to enforcement. While both are important, education helps boards avoid the types of infractions which result in fines and penalties.

The Division has posted notice of a Public Meeting/Workshop Hearing for Monday, August 13th from 9:30-11:30 am in Tallahassee. I realize that most of you reading this blog are not likely to make it up to Tallahassee for this hearing.  However, you can submit a comment regarding the proposed rules by sending an email to the following email address which has been set up for this purpose:

fctmh.rulehearing@myfloridalicense.com

The imposition of fines against associations will have a financial impact and may result in the community looking for ways to hold individual board members accountable for the costs to the association. Do not expect insurance to cover fines or penalties.  Given these new enforcement parameters, I am urging associations to consult with their management professionals and experienced legal counsel to ensure that they are operating within the requirements of the Statute and Administrative Code.  Particular attention should be paid to fiscal operations (budgeting, calculating and handling of reserves, collection of assessments), imposing fees of any kind other than assessments, elections and board member conduct and the awarding of contracts.  Serving on your board of directors is almost guaranteed to be a thankless job but you should try to avoid it also becoming a costly job!

 

Originally posted on communityassociationlawblog.com and written by Donna DiMaggio Berger

Board Must Allow Renewable Energy Devices

Q: I would like to install solar panels on the roof of my home, but I did not see any standards addressing this within my homeowners’ association’s documents or architectural review guidelines. Would I be allowed to install these in order to make my home greener? (K.L. via e-mail)

A: Probably. Under Section 163.04 of the Florida Statutes, homeowners’ association declarations may not prohibit owners from installing certain renewable energy devices on buildings located on lots or parcels that are subject to the declaration. These devices include “solar collectors, clotheslines, or other energy devices based on renewable resources.” In the event that an owner wishes to install solar collector devices on a roof, the statute allows the approving entity under the declaration (such as the architectural review committee) to determine the specific location where they may be installed, including positioning the solar collectors to the south or within 45 degrees east or west of due south, if this does not impair the effective operation of the solar collectors.
This law was first enacted in 1980, and the prevailing view is that covenants which predate the statute may still be enforced.

In the condominium context, the statute provides that owners may not be denied the ability to install the solar panels by the approving entity in the declaration, so long as the proposed installation is done within the unit boundaries. However, from a practical standpoint, these panels would rarely be located within the unit boundaries.
The Florida Condominium Act also allows the board of directors to install solar collectors, clotheslines, or other renewable energy devices upon or within the common elements or association property to benefit unit owners, without unit owner approval.

Q: My condominium association has historically had problems getting people to serve on the board. Two board members recently resigned and the remaining three board members cannot get volunteers to fill the vacancies. Some people in our community have suggested simply having the State come in and run the Association. Is that actually an option? (W.P. via e-mail)

A: Not really. The Florida Condominium Act does not provide a mechanism for the State to take over and handle the operation of the association. The Division of Condominiums, Timeshares, and Mobile Homes is the administrative agency in charge of regulating condominium associations. However, it does not have the authority to step in and run a condominium association.

You may be referring to the process of having a “receiver” appointed. Section 718.1124 of the Act provides that when an association fails to fill the vacancies on the board of administration sufficient to constitute a quorum, any unit owner can give notice of their intent to apply for a receiver to be appointed to manage the association’s affairs.

The statute outlines the process to have a court appoint a receiver, including providing notice to all owners, which must be given 30 days before filing the petition, in order to give the association sufficient time to constitute a quorum of the board of directors.

A receiver is typically a professional such as an attorney or an accountant who would run the association until such time as a quorum of the board can be sufficiently constituted. The association must pay the receiver’s salary, which could potentially be expensive. In my experience, appointing a receiver is not a desirable option for an association or your property values. Owners in your condominium need to step up and take their turn serving on the board. You should also look into professional management if your association does not currently use it.

Another option for the association would be to amend the bylaws to provide for a three-member board, which may make it easier to fill all the positions, and only requires two directors for a quorum.

Originally posted on floridacondohoalawblog.com and written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. 

Who is Responsible for Electrical Wiring and Plumbing Repairs?

Disputes over maintenance, repair and replacement responsibilities are common in community associations and a well drafted declaration or amendment to the declaration can help prevent disputes over who (owner or association) is responsible for a specific item of maintenance.

Regarding how to interpret your existing condominium documents, the unit boundaries will be defined within the declaration and sometimes within the site plan. Any item/component including electrical wires and plumbing located within the unit boundaries is the unit owner’s responsibility to maintain, repair and replace (unless the declaration states otherwise). In contrast, any item/component located outside the unit boundaries is a common element (or a limited common element) and the association is responsible to maintain, repair and replace the common elements unless a given item is identified in the declaration as a limited common element (benefiting the subject owner) and also identified as being the maintenance, repair and replacement responsibility of the unit owner.

Originally posted on floridacondohoalawblog.com and written by David G Muller

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

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

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

Emails as Association Official Records

Whether you live in a condominium, cooperative or homeowner association, the Statute governing your community defines the term “official records.” In defining official records, each Statute has a catch-all provision.

All other written records of the association not specifically included in the foregoing which are related to the operation of the Association.

Sections 718.111(12), 719.104(2), and 720.303(4), Florida Statutes.

Questions abound, however, as to whether emails are official records. The Department of Business and Professional Regulation (“Division”) has ruled that emails to an association can be considered official records, and are therefore subject to inspection and copying by owners or their representatives. But are all emails “to an association?” Are personal emails between board members official records? What about an owner’s email to a board member’s email address and the board member’s response to that owner – is that considered an official record subject to another owner’s inspection and copying?

Division rulings have held that e-mails to an individual director or to all directors as a group, addressed only to their personal computers, are not written communication to the association and therefore not considered an official record. This is because there is no obligation for a director to turn on a personal computer with any regularity, or to open and read e-mails before deleting them.  Irizarry v. Laguna Point Condominium Association, Inc., Arbitration Case No. 08-05-2791 (April 10, 2009/Final Order). This point was further clarified in the arbitration case of Humphrey v. Carriage Park Condominium Association, Inc., Case No. 08-04-0230 (March 30, 2009/Final Order/Campbell), where the arbitrator stated that “any e-mails received by, stored upon, or otherwise contained upon or within the personal computing devices (e.g., computers, laptops, cell phones, tablets, etc.) of Directors shall be considered the personal property of the Director upon whose device said e-mail exists.”  In other words, the email does not belong to the association.

However, the arbitrator in Humphrey went on to state “[t]he conclusion may be different if the association owns a computer on which management conducts business including e-mails (analogous to government public records); or if e-mails are printed up and passed around for discussion at a board meeting.”  In other words, emails to an association’s email address, the manager’s email address or any other email identified as an association email (“@condoname.com”) are considered official records.

It is important to have a clear understanding of and policy in place related to emails such that those that are official records are properly kept and those that are not are properly deleted. There are also exceptions for things such as litigation holds, which must be considered when creating and implementing an email policy.  It is therefore strongly recommended that all associations involve their attorney when formulating their policy.

 

Written by Howard J. Perl and originally posted to FL Condo HOA Law Blog

Website Law Likely to Change

Q:        I have heard that there is a new law requiring condominium associations to have a website. Is that true? (J.L. via e-mail)

A:        Yes, although the law has somewhat limited application. First, it is worthwhile to note that the 2018 Florida Legislature passed a Bill on March 9 that would change the 2017 website law. As of this time, the Bill has not been signed by the Governor, but it is not expected that he will veto the legislation. Once the Governor has acted on the Bill, I will present my annual legislative update.

The 2017 law created a new requirement for any condominium having 150 or more units in total to have a website up and running by July 1, 2018. The new law will change this requirement in several important ways.

For associations which are obligated to comply with the law, the required implementation date will be pushed back to January 1, 2019. Perhaps more significantly, the scope of the law has been narrowed as to which associations it applies to. For example, a multi-condominium association that operates 10 condominiums with 50 units each would have had to comply with the website requirement under the 2017 version of the law. Under the 2018 changes, a multi-condominium association that operates 150 or more units does not need to comply with the mandatory website requirement unless at least one of the condominiums operated by the association contains 150 or more units.

The 2018 amendments also tweaked some of the posting requirements from the original law, allowing posting of summaries of certain documents rather than the documents themselves.

 

Written by Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers Originally appeared on the FL Condo HOA Law Blog