It can be difficult to keep up with the seemingly never-ending stream of information nowadays. This is especially true if you are joining your condominium’s board of directors for the first time. Given all the new laws and new requirements that have been brought about these last few years with amendments to the laws governing condominiums and homeowners’ associations, even those board members who were already on the board may find themselves having trouble keeping up with the new requirements.
If you are reading this article, you are already ahead of the game because that means you are actively pursuing information regarding these responsibilities. However, you already know reading an article here and there is not enough. This is why one of the better changes to come about in the new laws is the extensive educational requirement for board members. Yes, it is time-consuming to take a four-hour new board member certification course. However, most board members that I know who took the course shared they learned so much from it.
The new laws place a heavier emphasis on direct responsibilities of board members, so the more board members know, the better. Although community association managers are not required to take this specific course, it would be a good idea for them to do so. This would not only give managers a window as to what their boards know but also open the avenue for a conversation between the board and the manager as to what each can expect from the other. Some boards are very “hands on,” and some are not. Misunderstandings about the relative responsibilities between boards and management can lead to inadvertent failures to comply with the community association laws, so clarity in this respect is very important.
One of the biggest changes is the consequences to board members for failing to comply with the official records statutes. A board member who knowingly, willfully, and repeatedly (meaning two or more violations within a 12-month period) violates the obligations to keep the official records of the association in the way required by the statute is deemed to have committed a second-degree misdemeanor and must be removed from office and a vacancy declared. Any person (not just board members) who intentionally destroys accounting records required by the statute faces a first-degree misdemeanor charge and personal liability for a fine under the statutes (in addition to being removed from office, if the person is a board member). Similarly, any person (not just board members) who knowingly refuses to release or produce association records with the intent to avoid or escape detection (or assist others in the avoidance or escape) of a crime commits a felony (in addition to being removed from office, if the person is a board member).
Regardless of whether the association is professionally managed, board members should be aware that they could still bear responsibility for compliance with the statute. In order to streamline requests for official records and ensure that requests are not inadvertently lost in the shuffle of emails and mail, the association should adopt a clear policy regarding official records. Such a policy should clearly inform unit owners where and how requests are to be made, set forth costs associated with copies if requested, and provide other important details regarding the association records.
In addition, the board of directors should ensure that its website is in compliance with the statute requirements and is continually and punctually updated with new documents as may be necessary.
Another policy that boards should be considering this year is one regarding unit owner participation at board meetings. As you know, the new statutes include a requirement that not only must boards meet at least once per quarter, but also at least four times per year the meeting agenda must include an opportunity for members to ask questions of the board. The statute goes further to specifically state that the unit owner right to attend meetings includes the right to ask questions related to the status of construction or repair projects, revenues and expenditures of the current year, and “other issues affecting the condominium.” While it was always the case that unit owners had the right to participate in board meetings and speak as to noted agenda items, the new laws greatly broaden that right to allow for questions on items that may not be on the agenda. In order to avoid derailment of important board business that does need to take place in meetings, a board policy on unit owner participation could set forth time limits for questions, requirements regarding when questions may be posed, and other organizational directions to allow for the most productive and efficient exchanges to take place. In this way the statute’s apparent objective of confirming unit owner participation and the board objective of having productive meetings will both be met.
The beginning of the year is a great time for association boards and management to review the current rules and regulations. Do they still serve the community? Are they all being enforced? Are there any gaps that should be filled? A thorough review of your rules and regulations will not only help even-handed enforcement of actual requirements, but it will also help weed out any outdated or conflicting information that may have been sitting there for years and which could cause an issue in the future. The board can do the initial review on its own, it can work with management (which usually has a very good idea of what should be changed or updated), or it could appoint a committee for this purpose. Once the board, management, and/or committee have completed their initial review and recommendations, the association should contact its attorney to make sure the changes it wants to make are in line with the rest of the association’s governing documents and Florida law. The attorney can advise as to the proper notice requirements for the board meeting at which the changes should be adopted and assist as needed. After all of this is done, the association should make sure to publish any changes to its membership and residents. After all, if people don’t know what the rules are, they cannot be expected to follow them.
Unlike board members, unit owners are not required to take any education courses on the dos and don’ts of community living. Yet, as G.I. Joe used to say, “…knowing is half the battle.” So, one last item of business that board members and managers should consider for the new year is a regular communication to unit owners and residents above and beyond the required meeting notices. I generally recommend the association consider sending a monthly or quarterly newsletter with ongoing projects, posting on the association website regarding upcoming events or deadlines, and sending regular email communications regarding important information (even if not necessarily community related, like local city or neighborhood information) or activities. These communications can be peppered with reminders about particular issues (“Remember association rules require pet owners to clean up after their pets,” “Kindly remember to keep the building entry doors closed for safety reasons,” or, “Reminder, board meeting on Monday at 7:00 in the lobby”, etc). Informed boards and informed residents lead to better community living and more rule compliance. Of course, when in doubt, reach out to your association’s attorney!
To read the original FLCAJ article, please click here.
Lilliana Farinas-Sabogal is a shareholder in Becker’s Community Association and Business Litigation practice groups. In addition to her experience in assisting community associations in their day-to-day business, management, and operational aspects of governing their communities, she assists boards of directors, unit owners, and community association managers in analyzing and resolving their often complex contractual and transactional disputes and issues. Ms. Farinas-Sabogal is also one of a select number of attorneys statewide who are board-certified specialists in condominium and planned development law.