There will be a "one-of-its-kind" event coming up next week for Broward County community associations. The Broward Coalition will be holding its first "Share and Learn" Workshop: What Every Association Needs to Know event at the Sunrise Lakes Phase 1 Clubhouse at 8100 Sunrise Lakes Drive North, Sunrise, FL 33322.
The purpose of this event is to provide a forum for education, discussion and even a little bit of entertainment for those of you involved in community association living!
The event will take place from 9:00 am to 1:30 pm. There will be a panel of experts and plenty of Q and A time for those in attendance. Breakfast & Lunch will be served for everyone in attendance and there is NO admission fee although attendees are asked to bring one non-perishable food item for the Cooperative Feeding Program. There will be 21 door prizes awarded in addition to two $250.00 gift certificates (winners of all prizes must be present to collect their prize).
I am proud to serve as the Broward Coalition's Pro Bono Legal Advisor. What does that mean? I try to answer a lot of association questions for the Broward Coalition members the same way I do in this blog. The Broward Coalition serves the interests of more than 200 community associations in Broward County and that number is growing. Their board is comprised of so many talented and dedicated people and is led by well-known community advocate and activist, Charlotte Greenbarg. You may have read about Charlotte lately in her fight to make sure the Broward School Board and other elected Broward County officials actually do the job we elected them to do.
I hope as many of you as possible are free to join us on November 13th for this amazing event. Please RSVP to Mary Macfie by November 10th if you will be attending via email at laundry333@aol.com
Friday, November 06, 2009
Thursday, November 05, 2009
Is your community violating state and federal fair housing
Sometimes discrimination can be subtle by just implying that something is not wanted rather than shouting it. A sign at the front of a beautiful community in a desired location proclaiming: "A 55 and Older Community" sends a pretty clear message that families are not wanted. In other communities, it may be a little more subtle with pictures on their website of only seniors and tagwords like "mature" when describing the type of occupant who will enjoy living there.
In addition to the federal fair housing law, Florida law also prohibits discrimination based on familial status. Both the state and federal fair housing laws permit communities to exclude children as permanent occupants if they meet certain exclusions. To qualify for the "55 and older" federal exemption, communities must meet the requirements established in the Housing for Older Persons Act of 1995 (HOPA). Specifically, at least 80% of the units or homes must be occupied by at least one occupant who is age 55 or older and the community must be able to demonstrate, through written policies, lease provisions, advertising, etc. that the community is designed exclusively for older residents.
A community will only be able to exclude children if it meets this criteria and if the age restriction is applied to the entire development and not just one portion of it. In other words, a multi-condominium community could not set aside just one building for older occupants and exclude children from the entire complex.
You cannot get around this criteria by simply passing rules designed to discourage families with young children while not meeting the 80% occupancy threshold. A classic example is prohibiting children from riding bikes in the community's green areas while not similarly prohibiting adults from riding bicycles there. The Department of Housing and Urban Development (HUD) periodically sends "spotters" to test for discriminatory practices and a large percentage of those tests do produce fair housing complaints. Remember, if you have that sign out front proudly proclaiming that you are a Senior Housing Community but you haven't taken a census in the last decade to actually verify that information, you have committed de facto discrimination because potential younger purchasers drove by under the mistaken assumption that they could be kept out.
Most people living in adult communities purchased there because they wanted a certain lifestyle. If that is the case in your community, it is important that you routinely safeguard that lifestyle by ensuring that you continue to meet all necessary requirements under federal and Florida law. Lastly, considering that women today are having babies well into their forties and most 55-year old's in 2010 are 2 or 3 decades from retiring, the tagline "55 and Over" for a community without children seems a little out of touch with today's realities. The threshold would probably make more sense if we nudged it up a decade to 65 and Over.
In addition to the federal fair housing law, Florida law also prohibits discrimination based on familial status. Both the state and federal fair housing laws permit communities to exclude children as permanent occupants if they meet certain exclusions. To qualify for the "55 and older" federal exemption, communities must meet the requirements established in the Housing for Older Persons Act of 1995 (HOPA). Specifically, at least 80% of the units or homes must be occupied by at least one occupant who is age 55 or older and the community must be able to demonstrate, through written policies, lease provisions, advertising, etc. that the community is designed exclusively for older residents.
A community will only be able to exclude children if it meets this criteria and if the age restriction is applied to the entire development and not just one portion of it. In other words, a multi-condominium community could not set aside just one building for older occupants and exclude children from the entire complex.
You cannot get around this criteria by simply passing rules designed to discourage families with young children while not meeting the 80% occupancy threshold. A classic example is prohibiting children from riding bikes in the community's green areas while not similarly prohibiting adults from riding bicycles there. The Department of Housing and Urban Development (HUD) periodically sends "spotters" to test for discriminatory practices and a large percentage of those tests do produce fair housing complaints. Remember, if you have that sign out front proudly proclaiming that you are a Senior Housing Community but you haven't taken a census in the last decade to actually verify that information, you have committed de facto discrimination because potential younger purchasers drove by under the mistaken assumption that they could be kept out.
Most people living in adult communities purchased there because they wanted a certain lifestyle. If that is the case in your community, it is important that you routinely safeguard that lifestyle by ensuring that you continue to meet all necessary requirements under federal and Florida law. Lastly, considering that women today are having babies well into their forties and most 55-year old's in 2010 are 2 or 3 decades from retiring, the tagline "55 and Over" for a community without children seems a little out of touch with today's realities. The threshold would probably make more sense if we nudged it up a decade to 65 and Over.
Wednesday, November 04, 2009
No one benefits from a community in turmoil.
Despite what you may have been told, most attorneys I know don't root for communities to head into crisis mode so they can crank out the billable hours. These kinds of communities present all sorts of challenges and potential liabilities for the attorneys who serve them.
A board under siege (either due to their own petty infighting or because they have been victimized) is an unfocused board. A client that can't understand and follow advice or, even worse, doesn't know when to reach out for help in the first place, is a dangerous client to have. It's easy for fighting board members to twist counsel's words or advice to their own advantage. Let's not also overlook the fact that having a scapegoat like your association attorney when there is nowhere left to hide from bad decisions can be appealing for some.
Do you know what happens most frequently in conflicted communities? They don't pay their legal bills. Contrary to the belief that "the lawyers are benefitting from all this", many times lawyers representing communities in crisis wind up struggling to get paid. Wise attorneys won't work with communities who can't or won't benefit from their advice.
Associations are corporate entities which require general corporate representation. There will always be enough legal work that must be performed for well-run, peaceful communities. Documents need to be tended, budgets prepared, meetings held, units conveyed, etc. Of course, just as with any other corporate entity there will be bumps in the road in the form of collections and litigation.
An association attorney's real worst nightmare is a community in turmoil because it probably means being fired, not paid or possibly sued. Just as associations should be picky about the attorneys they invite into their communities, attorneys should be equally selective about the associations with whom they choose to partner for the ultimate benefit of the membership.
A board under siege (either due to their own petty infighting or because they have been victimized) is an unfocused board. A client that can't understand and follow advice or, even worse, doesn't know when to reach out for help in the first place, is a dangerous client to have. It's easy for fighting board members to twist counsel's words or advice to their own advantage. Let's not also overlook the fact that having a scapegoat like your association attorney when there is nowhere left to hide from bad decisions can be appealing for some.
Do you know what happens most frequently in conflicted communities? They don't pay their legal bills. Contrary to the belief that "the lawyers are benefitting from all this", many times lawyers representing communities in crisis wind up struggling to get paid. Wise attorneys won't work with communities who can't or won't benefit from their advice.
Associations are corporate entities which require general corporate representation. There will always be enough legal work that must be performed for well-run, peaceful communities. Documents need to be tended, budgets prepared, meetings held, units conveyed, etc. Of course, just as with any other corporate entity there will be bumps in the road in the form of collections and litigation.
An association attorney's real worst nightmare is a community in turmoil because it probably means being fired, not paid or possibly sued. Just as associations should be picky about the attorneys they invite into their communities, attorneys should be equally selective about the associations with whom they choose to partner for the ultimate benefit of the membership.
Tuesday, November 03, 2009
Is Chinese Drywall creating problems for you?
Last week the Consumer Products Safety Commission (CPSC) came out with a series of inconclusive reports regarding the stinky Chinese Drywall (CDW) plaguing so many American homeowners. The most definitive finding was that CDW has a higher level of strontium than domestic drywall.
There is no known relationship, as of yet, between strontium and the "rotten egg" odor typically caused by sulfur and the corrosive effects of CDW on copper piping that have been reported. Of course, many people are most concerned with whether or not CDW carries any health risks in addition to these other adverse effects.
There is an ongoing nationwide class action regarding CDW. All CDW cases filed in federal court have been transferred to Judge Fallon of the Eastern District of Louisiana in New Orleans. Judge Fallon has scheduled three trials for early next year, the first of which will begin in January. Judge Fallon has decided that the first trial will be for a house in Louisiana and will be focused solely on property damage rather than health issues.
So how do you know if you have Chinese Drywall in your home? Here are some telltale signs:
1. The easiest way to determine whether you have CDW is to look on the backside of a piece of your drywall for an identification mark such as "made in China" or the name of a CDW manufacturer such as Knauf;
2. Do you detect a foul smell in your home similar to rotten eggs?; and
3. Look for corrosion on your copper pipes or the coils inside your air conditioning unit. Have an electrician inspect these items rather than attempting to do it yourself as you can be injured;
For more information on the nationwide class action lawsuit on Chinese Drywall please visit: www.chinesedrywalllaw.com.
There is no known relationship, as of yet, between strontium and the "rotten egg" odor typically caused by sulfur and the corrosive effects of CDW on copper piping that have been reported. Of course, many people are most concerned with whether or not CDW carries any health risks in addition to these other adverse effects.
There is an ongoing nationwide class action regarding CDW. All CDW cases filed in federal court have been transferred to Judge Fallon of the Eastern District of Louisiana in New Orleans. Judge Fallon has scheduled three trials for early next year, the first of which will begin in January. Judge Fallon has decided that the first trial will be for a house in Louisiana and will be focused solely on property damage rather than health issues.
So how do you know if you have Chinese Drywall in your home? Here are some telltale signs:
1. The easiest way to determine whether you have CDW is to look on the backside of a piece of your drywall for an identification mark such as "made in China" or the name of a CDW manufacturer such as Knauf;
2. Do you detect a foul smell in your home similar to rotten eggs?; and
3. Look for corrosion on your copper pipes or the coils inside your air conditioning unit. Have an electrician inspect these items rather than attempting to do it yourself as you can be injured;
For more information on the nationwide class action lawsuit on Chinese Drywall please visit: www.chinesedrywalllaw.com.
Monday, November 02, 2009
Tenants get new federal rights while associations get nothing.
How many of you are aware of the existence of the Protecting Tenants at Foreclosure Act of 2009? Apparently, this law was slipped in while people were busy watching the health care bills, the new Supreme Court Justice nominee and which of Obama's staff members didn't pay their taxes!
The law is not crystal clear as to what rights it affords tenants in homes or units that have been foreclosed on but it clearly confers some important new tenant protections. The law automatically expires on December 31, 2012, but until then it could significantly impact your community association. The Act provides protection to bona fide tenants (defined as any person not related to the person being foreclosed on who enters into a lease before the notice of foreclosure, in an arms-length transaction for a rental amount that approximates fair market rental value).
The Act specifically provides that a bona fide tenant cannot be kicked out of the dwelling as soon as someone else (the bank or presumably the association) takes title to the property. Instead, whoever takes title to the property at the foreclosure sale does so subject to the tenant's new federal right to occupy the unit for a period of time and must provide the tenant with a 90-day notice to vacate before attempting to remove that tenant.
Moreover, unless the property is sold to someone who intends to occupy the property as their primary residence, whoever takes title at the foreclosure sale must honor any existing bona fide lease even if it goes beyond the 90 days. In other words, someone who has a year left on their lease cannot be kicked out until their lease is over unless the property is sold to someone who intends to occupy it as their primary residence and the 90-day notice has been given.
For some associations this might be a good thing as the units/homes they foreclose upon will come with ready-made tenants. However, I can see room for problems including tenants who claim they have prepaid their rent to the prior owner and issues with troublesome tenants whose removal will now be delayed as a result of this new law.
The real question remains why struggling association members remain the last group standing who have not received any sort of federal or local help.
The law is not crystal clear as to what rights it affords tenants in homes or units that have been foreclosed on but it clearly confers some important new tenant protections. The law automatically expires on December 31, 2012, but until then it could significantly impact your community association. The Act provides protection to bona fide tenants (defined as any person not related to the person being foreclosed on who enters into a lease before the notice of foreclosure, in an arms-length transaction for a rental amount that approximates fair market rental value).
The Act specifically provides that a bona fide tenant cannot be kicked out of the dwelling as soon as someone else (the bank or presumably the association) takes title to the property. Instead, whoever takes title to the property at the foreclosure sale does so subject to the tenant's new federal right to occupy the unit for a period of time and must provide the tenant with a 90-day notice to vacate before attempting to remove that tenant.
Moreover, unless the property is sold to someone who intends to occupy the property as their primary residence, whoever takes title at the foreclosure sale must honor any existing bona fide lease even if it goes beyond the 90 days. In other words, someone who has a year left on their lease cannot be kicked out until their lease is over unless the property is sold to someone who intends to occupy it as their primary residence and the 90-day notice has been given.
For some associations this might be a good thing as the units/homes they foreclose upon will come with ready-made tenants. However, I can see room for problems including tenants who claim they have prepaid their rent to the prior owner and issues with troublesome tenants whose removal will now be delayed as a result of this new law.
The real question remains why struggling association members remain the last group standing who have not received any sort of federal or local help.
Friday, October 30, 2009
Town Hall Meeting on Condo and HOA issues.
The Sun Sentinel's Town Hall meeting last night drew a big crowd of people looking for answers to fairly common association problems. I was very pleased to sit on a panel that was asked to listen to those questions and try to help.
Two issues were raised that directly pertain to my profession-lawyers! The first issue pertained to the association attorney's perceived support and loyalty for the board alone. Several audience members complained that attorneys representing their communities were (a) helping boards do bad things (b) wouldn't speak with them as unit owners and (c) were part of the problem and not the solution.
As an owner who is not part of the board's decision-making process, it can feel like the attorney represents the board and not YOU. In fact, association attorneys (the good ones at least) realize that they represent the association which, of course, is comprised of all the members. However, when representing any large organization, you can't take direction from several hundred masters and that is why the board is the liaison with the attorney.
I have seen association attorneys overstep their boundaries, become too attached to one or two board members to the exclusion of others, and not be forceful enough when they are cognizant that the board is operating outside the confines of their documents and the statutes. It's equally important to remember, however, that the boards who are most intent on operating outside those boundaries often do not get their attorney's advance buy-in for their agenda. Just because the association is represented by counsel, don't assume that the board has gotten the attorney's approval for a clearly unadvisable decision; chances are the attorney was never consulted.
The other issue raised regarding association attorneys is why 5 of them can give you 4 different opinions!! My first answer would be "it's the nature of the beast"! In all seriousness, however, most of what we do hinges on interpreting language that would make my English professors at Northwestern cringe. Sadly, many developers create awful governing documents and many of our laws are also very poorly drafted. Don't assume that all of the laws being written in Tallahassee are drafted by lawyers. Many times they are the result of lobbyists writing out suggestions on cocktail napkins!
When our laws and association documents are written in concise, plain English it makes it much easier to render useful and uniform opinions. Garbage in, garbage out or conversely, quality in, quality out!
Two issues were raised that directly pertain to my profession-lawyers! The first issue pertained to the association attorney's perceived support and loyalty for the board alone. Several audience members complained that attorneys representing their communities were (a) helping boards do bad things (b) wouldn't speak with them as unit owners and (c) were part of the problem and not the solution.
As an owner who is not part of the board's decision-making process, it can feel like the attorney represents the board and not YOU. In fact, association attorneys (the good ones at least) realize that they represent the association which, of course, is comprised of all the members. However, when representing any large organization, you can't take direction from several hundred masters and that is why the board is the liaison with the attorney.
I have seen association attorneys overstep their boundaries, become too attached to one or two board members to the exclusion of others, and not be forceful enough when they are cognizant that the board is operating outside the confines of their documents and the statutes. It's equally important to remember, however, that the boards who are most intent on operating outside those boundaries often do not get their attorney's advance buy-in for their agenda. Just because the association is represented by counsel, don't assume that the board has gotten the attorney's approval for a clearly unadvisable decision; chances are the attorney was never consulted.
The other issue raised regarding association attorneys is why 5 of them can give you 4 different opinions!! My first answer would be "it's the nature of the beast"! In all seriousness, however, most of what we do hinges on interpreting language that would make my English professors at Northwestern cringe. Sadly, many developers create awful governing documents and many of our laws are also very poorly drafted. Don't assume that all of the laws being written in Tallahassee are drafted by lawyers. Many times they are the result of lobbyists writing out suggestions on cocktail napkins!
When our laws and association documents are written in concise, plain English it makes it much easier to render useful and uniform opinions. Garbage in, garbage out or conversely, quality in, quality out!
Thursday, October 29, 2009
The advantages and disadvantages of living in a common interest ownership community.
Have you ever made a list of pros and cons to decide how you really feel about a person or an issue? It sometimes helps to see in black and white which column outweighs the other.
Realistic expectations can often help avoid disappointment and failure in any endeavor. If you didn't make a list before you moved in to your current condominium, cooperative, homeowners' association or mobile home community, it's not too late to take a moment to figure out whether the advantages outweigh any perceived disadvantages.
Some of the advantages to that common interest ownership community are:
-Shared vision for aesthetics;
-Shared expenses for common facilities and amenities that you would not otherwise be able to afford;
-Security;
-Location (can't afford a house on the beach but a condo on the beach might be in your budget!);
-Rule enforcement (you hopefully won't have a neighbor paint her house purple or leave a car on cinderblocks for months);
-Bulk buying power.
Some of the disadvantages to that common interest ownership community may be:
-Your priorities in terms of maintenance and repair items might not be shared by the board;
-You are subject to the board's judgments in terms of vendor selection, contract sums, etc.
-You are subject to the documents being amended and rules you agreed to at the time of purchase being changed (you must be prepared to be on the losing end of votes at times);
-Your home is your castle except in a community association. You will have to tone down the all-night noisy parties, drive fewer cars and adapt to certain aesthetic standards you might not share;
-You could be the subject of arbitrary and capricious enforcement at some point or nasty board politics;
-You could be forced to pay for owners who aren't paying.
Of course, everyone's list will be different so it might be time to brush off or update yours to see if your community is still a good fit.
Realistic expectations can often help avoid disappointment and failure in any endeavor. If you didn't make a list before you moved in to your current condominium, cooperative, homeowners' association or mobile home community, it's not too late to take a moment to figure out whether the advantages outweigh any perceived disadvantages.
Some of the advantages to that common interest ownership community are:
-Shared vision for aesthetics;
-Shared expenses for common facilities and amenities that you would not otherwise be able to afford;
-Security;
-Location (can't afford a house on the beach but a condo on the beach might be in your budget!);
-Rule enforcement (you hopefully won't have a neighbor paint her house purple or leave a car on cinderblocks for months);
-Bulk buying power.
Some of the disadvantages to that common interest ownership community may be:
-Your priorities in terms of maintenance and repair items might not be shared by the board;
-You are subject to the board's judgments in terms of vendor selection, contract sums, etc.
-You are subject to the documents being amended and rules you agreed to at the time of purchase being changed (you must be prepared to be on the losing end of votes at times);
-Your home is your castle except in a community association. You will have to tone down the all-night noisy parties, drive fewer cars and adapt to certain aesthetic standards you might not share;
-You could be the subject of arbitrary and capricious enforcement at some point or nasty board politics;
-You could be forced to pay for owners who aren't paying.
Of course, everyone's list will be different so it might be time to brush off or update yours to see if your community is still a good fit.
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