Condominium Associations

Most associations should have 5 directors

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We see a few Condominium or Homeowners’ Associations with only three directors serving a one year term and some larger Associations with seven or nine directors.

There is a benefit to larger Master Homeowners’ Associations, with many neighborhoods and condominiums, to have many directors so that each of the various sub-communities have a representative on the master board.

However, for the vast majority of Associations five directors is the best number because you can obtain a quorum of the board and have a board meeting if only three directors show up.

Some smaller Associations say it is difficult to get more than three directors because of apathy in the community. However, having only three directors can be a major problem because a quorum is then only two directors. Then, if two directors meet at the pool, in the social room, in each other’s units, or on the telephone and discuss Association business, such acts could be considered to be an illegal board meeting. Under the Florida Sunshine Laws contained in the Florida Statutes, when a quorum of the board meets and discuss Association business (in this case two directors), the meeting is considered an official board meeting and must be noticed at least 48 hours before the meeting and the meeting must be open to all the members. This of course could be a real problem when the two directors believe they are just getting together socially, to play golf, or just to talk on the phone.

To avoid such a Sunshine Law problem, having five directors is much better because it then takes three directors to get together discussing Association business to have a quorum and therefore a board meeting.

Next is the issue of having one year terms of director verses two year staggered terms. With a five member staggered board, three directors will be elected one year to serve two year terms and two directors will be elected the following year to serve two years terms then and so on and so on.

The beauty of staggered terms is that you will get a continuation of service and directors with knowledge of Association business staying on the board each year which allows for a much smoother operation of your Association year to year and the new board not having to reinvent the wheel every year.

If your Association does not already have five (5) directors with two year staggered terms and you want to move to this set up, you will probably have to amend your Association’s Bylaws to provide for such.

Some of you may be aware that a new law was passed last year imposing eight year term limits on Condominium Association directors. There were differing opinions as to whether the eight years included years served before the law become effective 7/1/19 or only years served by directors elected after 7/1/19.

The division of condominiums in Tallahassee finally have said that they see the law, as do most Condominium attorneys, is that it provides that the eight years term limit does not start until a director is elected, or starts to serve, after 7/1/19 no matter how many years the director may have served before 7/1/19. It is difficult for many Associations to find good members willing to serve on their Association’s board. Therefore, hopefully the Legislature will be wise and repeal this eight year limitation before 2026 when some good directors may start reaching their eight years max.

Informative Trade Show coming up: South Gulf Coast Trade Expo & Taste of the Expo; 106 Vendors and 8 Food Court Restaurants; Free parking, free admission, free food court; 2 free classes: Legal Update and Board Certification. A fabulous service and products trade show for CAMs, Association Board Members and Homeowners. Friday, April 3rd from 9 am to 1 pm at Alico Arena, on the grounds of SGCU in Fort Myers. Register at www.southgulfcoastchaptercai.com.

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.
Homeowners Associations

Keeping drones from being a nuisance in your community

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We keep hearing that delivery companies will soon be delivering packages to our doorsteps by drones. Developers and realtors are using drone footage as marketing tools. Hobbyist and kids are flying them around in their spare time.

How should your Condominium or Homeowners’ Association handle the growing number of drone use from becoming a nuisance in your community?

While some board of directors just say they want to ban drones in their community, this is easier said than done as flying vehicles (such as airplanes or helicopters) have the right to fly over your community’s airspace and there are a lot of benefits to having as described above to having drones around.

So, rather than trying to prohibit drones, we suggest that community associations have their owners approve amendments to their governing documents to allow them as long as they are flown legally and do not unreasonably disturb the residents.

As for flying legally, drones can be defined as powered, unmanned, aerial vehicles that use aerodynamic forces to provide vehicle lift, can fly autonomously or be piloted remotely, and designed to be recoverable. The drones need to 1) be registered with the FAA, to the extent required, 2) be operated by an individual duly licensed by the FAA, to the extent required and 3) be flown and utilized only in accordance with the FAA and other applicable governmental requirements.

As for not disturbing the residents, the drones need to 1) be flown within the community in a manner not to interfere with an owner’s reasonable expectation of privacy, 2) not utilized in any fashion to spy or otherwise peer or take pictures into the residence of another owner’s property, 3) not utilized to harass any person with respect to private property or to the Association’s common property and 4) not utilized in a manner to cause injury to person or property.

It is good to add language to the amendments that make the operator of a drone liable and solely responsible for any injury to person or property which results from the use of such drone. If the operator fails to comply with the new amendments, the person shall constitute a nuisance and violation of the regulations.

To protect the association, the new regulations should provide that the association is not a guarantor or protector of an individual’s right to privacy with respect to any drones that are flown in the community and that the association will only undertake actions under the regulations if the association representatives have direct knowledge and evidence of a violation or following receipt of a written claim from an offended resident and subsequent inspection by the association and determination of a violation.

New technology develops much quicker than the legal rules and regulations that come slowly after once an issue arises, privacy is invaded, property is damaged or persons get hurt by it. That is why it is prudent to get ahead of the curve so your residents who use or are affected by the new technology will clearly understand what their legal rights and obligations are in relation to the new technology. Adopting such drone rules and regulations should help keep the peace in your building or neighborhood.

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.
Condominium Associations

New directors must sign the form or go to class

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Last month we talked about what owners must do to run for the board in a Condominium or Homeowners” Association. This month we will discuss what document a newly elected or appointed director in a Condominium Association, Cooperative Association, or Homeowners’ Association must sign to be in compliance with State Law requirements.

Florida law says that new directors must either sign a new director certification form or attend an educational class and obtain a certification of completion form.

Section 718.112(2)(d)3.b., Florida Statutes provides that: “Within 90 days after being elected or appointed to the board of an association of a residential condominium, each newly elected or appointed director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and current written policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members. In lieu of this written certification, within 90 days after being elected or appointed to the board, the newly elected or appointed director may submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved condominium education provider within 1 year before or 90 days after the date of election or appointment. The written certification or educational certificate is valid and does not have to be resubmitted as long as the director serves on the board without interruption. A director of an association of a residential condominium who fails to timely file the written certification or educational certificate is suspended from service on the board until he or she complies with this sub-subparagraph. The board may temporarily fill the vacancy during the period of suspension. The secretary shall cause the association to retain a director’s written certification or educational certificate for inspection by the members for 5 years after a director’s election or the duration of the director’s uninterrupted tenure, whichever is longer. Failure to have such written certification or educational certificate on file does not affect the validity of any board action.”

Similar language is provided in Chapter 720, Florida Statutes for Homeowners’ Associations and Chapter 719, Florida Statutes for Cooperative Associations.

Even though the new director certification forms says that the director has read “all” of the association’s governing documents (most directors never have read all of their governing documents and never will- nor has their Attorney), there is no penalty under the Statutes for signing the document and not actually reading the governing documents.

Similarly, for the few directors who chose to go to a class, there is no requirement to pay attention or take or pass any test. As long as the warm body director shows up, he or she will get a certificate of completion.

As long as one of the two forms (new director certification form or certification of completion of educational class) is turned into the Association within 90 days of the election or appointment to the board, the director qualifies to be on the board.

So that the qualification requirement for directors does not become an issue at your condominium, cooperative or homeowners’ association, all of your directors should sign a director certification form at your organizational board meeting following your annual meeting this season. You can get such a form from your Association attorney if your manager does not already have one. The association Secretary should then keep the signed forms along with the other Association records.

It is very interesting that the State of Florida makes unpaid volunteers willing to serve on their association’s board go through this mindless routine of signing these forms and filing them with the association’s records.

Even if a new director forgets to sign a form and is therefore “suspended” from the board, the suspension can be lifted in just a few minutes by giving the director the form and then putting it in the file. So this “sign da papers” law is really a form over substance needless imposition on volunteers care of the State.

Rob Samouce is a principal attorney in the Naples law firm of Samouce & Gal, P.A. He is a Florida Bar Board Certified Specialist in Condominium and Planned Development and concentrates his practice representing condominium, cooperative and homeowners associations in all their legal needs including the procedural governance of their associations, covenant enforcement, assessment collections, contract negotiations and contract litigation, real estate transactions, general business law, construction defect litigation and other general civil litigation matters. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time.