The first quarter of the new calendar year, also known as “season” is coming up and this is the time that most condominium and homeowners’ associations have their annual meetings and annual election of directors because the most residents are in town.

If you live in a condominium, at least 60 days before the annual meeting/scheduled election, the association must mail a first notice of the date of the election and a unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before the scheduled election. The candidate can also provide a candidate information sheet (resume) within 35 days before the scheduled election.

It is very important that a candidate makes sure that the association receives the notice of intent to be a candidate on or before the 40 day deadline. If the candidate misses the 40 day deadline, even by one day, the candidate cannot be on the ballot nor automatically be on the board if less intents are received than there are open seats for election.

If there are more intents to be a candidate received than there are director seats coming open for election, then there will be a ballot and election at the annual meeting. The ballot has to be sent to all owners, along with a second notice of annual meeting at least 14 days before the annual meeting/election.

If there are less intents to be a candidate received than there are director seats coming open for election, then the candidates who got their intents to the association before the 40 day deadline will automatically be on the new board.

For homeowners’ associations there is no requirement for first and second notices of annual meetings. The election of directors, if one is required must be held at, or in conjunction with the annual meeting or as provided in the governing documents. The notice of annual meeting must also be sent to all members at least 14 days before the meeting. The election must be conducted in accordance with the procedures set forth in the governing documents of the Association and all qualifying members of the association are eligible to serve on the board and a member may nominate himself or herself as a candidate for the board at the annual meeting.

However, if the election process of the homeowners’ association allows candidates to be nominated in advance, then the association is not required to allow nominations at the annual meeting. For this reason, many homeowners’ associations will adopt election process rules that will mirror the process used in condominium associations (60 day 1st notice, 40 day intent to run deadline, 35 day information sheet deadline and 14 day 2nd notice), so that candidates must put in their notice of intent to be a candidate at least 40 days before the annual meeting/election. Once the homeowners’ association has adopted such election process rules, there will no longer be any surprise nominations for directors from the floor at the annual meeting.

It is instructive to know who is qualified to be a candidate for the board. For most condominium and homeowners’ associations, the bylaws provide that a candidate must be a member of the association. However, some bylaws do not require directors to be members so they could have a non-owner Manager, CPA, Attorney or Engineer, tenant or golfing partner be a director.

A candidate must be eligible to be a candidate to serve on the board of directors at the time of the deadline for submitting a notice of intent to run in order to have his or her name listed as a proper candidate on the ballot or to serve on the board. A person who has been suspended or removed from the board by the division of condominiums or who is delinquent in the payment of any monetary obligation due to the association, is not eligible to be a candidate for board membership and may not be listed on the ballot. A person who has been convicted of any felony is not eligible for board membership until such felon’s civil rights have been restored for at least 5 years of the date such person seeks election to the board.

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.

For whatever reason we are getting more and more complaints from Associations that a resident is yelling and cursing at other residents either in person, on the property, or by use of nasty e-mails. Such conduct is very disturbing to many and they then ask us what they can legally do about it to get the person to stop.

Although most Condominium and Homeowners’ Associations have “nuisance” provisions in their governing documents which allows the Association to take legal action if a resident is causing a nuisance as defined in their documents, usually the nuisance provision only concerns matters such as playing music loud after hours or having loud parties with lots of noise and cars.

However such nuisance provisions usually do not cover people using profanity or personally acting abusive or threatening against other residents while on property or in e-mails or letters.

In order to beef up the nuisance language to cover vulgar and nasty behavior, we have found adding something like the following to the Declaration of Condominium or Declaration of Covenants will do the trick: “No owner, tenant or guest may disturb any other owner or resident with the use of profane, obscene, threatening or abusive comments either orally or in writing or by their conduct on the property that is abusive or threatening.”

Such an amendment will require a membership vote. However, once approved, it will be much easier for the Association to bring legal action against the owner for violation of the new nuisance provision by the owner or their guest or their tenant. If such legal action becomes necessary, per statute, the owner will be responsible for the Association’s prevailing party attorney’s fees.

Although it still is pretty rare for a community to have many residents who act is such an unsavory manor, we see that the ones who do seem to be getting bolder and bolder with the intensity of the vulgarity, rudeness, aggressive and threatening manner.

Sometimes we will see that nasty e-mails are written late at night, when the drafter can hide behind their video monitors and then the next day when they are confronted in person, they act a bit more pleasant.

Others don’t seem to give a flip and will spew venom loudly and often at anyone or everyone.

Many times Board members or management will try to talk with the vile folks in a reasonable manner and many times such attempts at being civil will go nowhere. Directors need to understand that usually they are not usually dealing with an individual with a normal personality. Maybe no one ever taught them that they can get win more with honey than with vinegar. The Directors have no legal obligation to respond to nasty e-mails and letters from fellow residents.

Sometimes law enforcement has to be called to remove these bad actors from Association meetings, prevent them from joining the meeting, or to protect residents being threatened. Residents should not hesitate to contact the police or sheriff’s office if they are physically threatened or assaulted. Usually law enforcement will have a chat with them so they understand that such behavior must stop and if warranted, they will be arrested.

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.

There has been a growing phenomenon in Southwest Florida of investor corporations, limited liability companies or trusts buying homes in neighborhoods and units in condominiums whose investor owners have no intention of ever living in the home or unit. They are looking for rental investment income. They want to just lease the units to whomever for a number of years and then sell the properties for a profit.

It is common knowledge that many tenants do not treat the use of the home, unit, or common areas as well as owners do. These tenants do not have personal investment in the homes or units that homeowners and unit owners do. Many such tenants will rent for a few months or a few year and then move on. They do not have the same incentive as owners to keep the places up.

In addition because of the transient nature of these type renters, many will violate the community’s rules such as having many loud parties, having many visitors at all times of day and night, leaving their things out on the common areas, rarely mowing the lawn or weeding the gardens, possessing unlawful pets or keeping unpermitted vehicles on property.

It can take a lot of the Association’s time and money to try to police such unruly tenants.

Most of the out of town, out of sight, investor purchasers pretty much can care less who they rent to or what their renters do as long as they get their monthly rent and the place does not burn down.

So, in order to minimize the adverse effects such investor purchasers and their unruly tenants cause, we have found that one of the best solutions is to have the owners amend the governing documents of the community to prohibit new owners (other than those who acquire title by inheritance) from leasing their home or unit for a period of time. Usually its twenty four (24) to thirty six (36) months from acquisition of the home or unit before the new owner can lease.

Such an amendment will take a membership vote to approve at a special meeting of the members and will require the approval percentage set forth in the Declaration of Covenants or Declaration of Condominium. It could be 3/4, 2/3 of all owners, or of those who vote at a members meeting, or a simple majority of the owners. You will have to check your Declaration to see what approval percentage of your owners would be required. Association Legal counsel can prepare the necessary documents for such a vote including a notice of meeting, proxy and propose amendments.

This may not stop all investor purchasers. However, the return on investment looks a lot bleaker if the new investor, who will not be living in the unit, will not be able to make any money (rent) on the home or unit for a few years after purchase.

Some realtors may claim that the sky is falling if you put in any limitations on new prospective purchasers. However, we have not seen any issues, in communities with such restrictions, from owners being able to sell their residences and we have seen no adverse effect on property values. If anything, such restrictions increase the property values. In addition, if you have too many rentals in your community, some traditional family purchasers may not be able to get a mortgage as many lenders have community rental caps.

As you can see, there is a way to slow down or stop faceless investors from taking over your neighborhood or condominium. We are seeing more of them year after year and if you put such new owner leasing prohibitions in your documents, there is a good chance potential investor purchaser will look instead down the street for a community that does not have such restrictions to purchase. This way your community can remain stable and harmonious with most homes or units being occupied by full time or snowbird single family owners.

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.

For most violations of rules and restrictions contained in a Condominium or Homeowners’ Association governing documents, the enforcement procedure is fairly simple. A call or letter is sent by management telling the rule or regulation violator to knock it off. If the violation continues, then a certified letter is usually sent from the Association’s attorney to the violator giving him or her one last chance to stop the violation. If that does not work, then the violator is usually sued either in arbitration for some Condominium violations or in local courts for other Condominium violations and for Homeowners’ Association violations.

If successful in litigation, the violator will then get an Order from the Judge to stop or cure the violation. If the violation continues or is not cured, then the violator can be found in contempt of court and fined by the Court or maybe even ultimately incarcerated if the contempt fines are not paid.

However, this fairly straight forward process many times does not work if the violator is elderly and suffering from dementia, Alzheimer’s or mental illness. Sometimes, the suffering person will wander around the common areas at odd times, steal things or damage common property, yell and scream at other owners or become a hoarder and live in a filthy unit or home. Often, family members, even spouses, want nothing to do with helping Association representatives try to abate the nuisance to other residents being bothered by their loved one’s actions. They will say they have tried to do all they can do already.

Many times, the elderly person who is losing, or has lost, their normal mental capacity will ignore calls or letters being sent to them by the Association, will avoid legal process of service and, if served, will not get an attorney and will then ignore a court order for compliance or contempt even if issued. Law enforcement usually will not get involved unless there is concrete evidence of a crime or a real threat of violence to others.

So where does an Association board turn to in order to try to rectify the situation when the normal legal routes probably will not be productive?

A starting point locally may be to check out Collier Senior Resources (CSR) which provides information and services for older adults and caregivers. CSR’s website is: collierseniorresources.org.

As stated in their website: “CSR embraces collaboration between like-minded organizations who are focused on older adults and caregivers. With this in mind and thanks to the efforts and support of Collier Senior Resources, the Leadership Coalition on Aging (LCA) includes over 40 local agencies and non-profit organizations dedicated to seniors and caregivers in our community. Consistent with our Mission, we have compiled a comprehensive and growing list of resources for Seniors and Caregivers. Many of the resources listed below are federal and regional; however, we strive to identify and provide resources that are local to help you find the answers to your questions and information you need. Local Resources reflects local providers and agencies committed to helping seniors and caregivers, specific to Collier County and Southwest Florida.”

Some of the listed resources that could be relevant to our person describe above include: Accessible Home Health Care of Naples, Administration on Aging, Alienated Grandparents Anonymous, Inc., Alzheimer’s Support Network, Assisting Hands Homecare, Care Right, Inc., Collier County Services for Seniors, Comfort Keepers, Executive Care, Florida Department of Elder Affairs, Grace Companion Care, Hanson’s Services, Inc., Home Care Assistance of Naples, Interim Health Care of Naples, Moorings Park Home Health, Parkinson Association of Southwest Florida, Seniors Helping Seniors.

As you can see, there are a plethora of local groups and organizations designed to assist the elderly neighbor who may not be quite fully with it anymore and may just need a little assistance and care from people knowledgeable of their condition. Changes are that quicker and better positive results may occur by looking into these type services rather than just trying to rely on the legal system to stop the violations by those suffering from mental conditions out of their control.

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.