Homeowners Association Law in Florida. February 12, 2014 Robert C. Chilton, Esq.

Transcription

1 Homeowners Association Law in Florida February 12, 2014 Robert C. Chilton, Esq.

2 HELP! We are just volunteers!

3 HELP! Here to help our neighbors.

4 HELP! Why must we be burdened with all this fine print?

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10 Chapter 720: A strict disciplinarian

11 Chapter 720: A strict disciplinarian

12 Chapter 720: A strict disciplinarian

13 4 Keys to Success 1. Read (your documents and the statute) 2. Be formal 3. Find the source 4. Use your records

14 1. Read Governing Documents Declaration of Covenants Bylaws Articles of Incorporation Rules & Regulations Statutes

15 1. Read Gov. Docs & Rules Read each twice Use a highlighter

16 1. Read - Statutes Chapter 720 governs HOAs Either Chapter 607 or Chapter 617 Ch. 607 governs for-profit corporations Ch. 617 governs non-profit corporations

17 1. Read Statutes Read each once Use a highlighter

18 2. Be Formal Formal vs. informal Should I send an or hold a meeting? Are invitations needed? Do we have to vote? Verbal is OK, right? Who needs an agenda?

19 3. Find the Source! Most questions are answered in the gov. docs or statutes Most legal problems arise from: Action without authority Action improperly taken Most questions can be answered without a lawyer!

20 3. Find the Source! Ignorance of the law is no excuse, whether you are a volunteer or not.

21 3. Find the Source!

22 3. Find the Source!

23 3. Find the Source!

24 3. Find the Source! For every decision, what is the source? Are we authorized? Is there a rule? What do the covenants say?

25 3. Find the Source (a detour)! What if the statute says one thing and the bylaws say another? What if the gov. docs are inconsistent between themselves? Who decides which provision prevails?

26 3. Find the Source (a detour)! Generally, the hierarchy is: 1. Statutes 2. Declaration 3. Bylaws/Articles of Inc. 4. Written Rules

27 3. Find the Source (a detour)! Be careful! Some parts of the statute only fill gaps. If you have no amendment provision, the statute supplies one. If your bylaws do not provide for meeting notices, the statute fills the gap.

28 4. Records The Digital Treasurer

29 4. Records If you cannot use them, you are flying blind. Boards come and go. Your records are the critical link. Ask yourselves: What are they? Where are they? Who can access them? How long are the kept?

30 4. Records What are they? Pursuant to Section (4), an HOA s official records include: 1. Common area records (plans/permits) 2. Governing documents 3. Rules and regulations 4. Meeting minutes 5. Membership/parcel roster 6. Insurance policies 7. Contracts/bids 8. Financial/accounting records 9. Prospective owner disclosure ( ) 10. All other records related to the operation of the association

31 Does that include s? 4. Records

32 4. Records Where are they?

33 4. Records Who can access them?

34 4. Records How long are they kept? Years

35 4 Keys to Success (reminder) 1. Read (your documents and the statute) 2. Be formal 3. Find the source 4. Use your records

36 Questions & Answers

37 Meeting Tips

38 Meeting Tips - Notice Is it a board, membership or committee meeting? The rules are different. What do your bylaws say? If the bylaws are silent, Chapter 720 fills the gap.

39 Meeting Tips Notice (Committees) If the bylaws are silent, does the committee have the power to make final decisions on expenditures or to approve architectural decisions? If so, either: Post the notice conspicuously 48 hours in advance; OR Mail/deliver notice to each member 7 days in advance.

40 Meeting Tips Notice (Board) If the bylaws are silent, the general rule is either: Post the notice conspicuously 48 hours in advance; OR Mail/deliver notice to each member 7 days in advance. EXCEPTION: If special assessments or changes to rules regarding parcel use are to be considered, mail/deliver and post the notice 14 days in advance.

41 Meeting Tips Notice (Membership) If the bylaws are silent, notice must be mailed/delivered to members 14 days in advance. Content: Notice of a special membership meeting must describe the purpose(s) for which it is called. AFFIDAVIT: Evidence of compliance shall be by affidavit signed by the person providing the notice and filed with the official records.

42 Meeting Tips Conduct Follow your governing documents. Enact written rules conducive to your community. Be aware of Chapter 720. Any owner may tape record or videotape any board or membership meeting.

43 Meeting Tips Conduct What do you governing documents say? Do they insist upon Robert s Rules? Do they require the meeting to be held at a certain time or on a certain date? Do they state who shall chair a meeting? Do they impose an agenda? Nothing in Ch. 720 requires you to follow Robert s Rules of Order!

44 Meeting Tips Board Meetings Board meetings must be open to all members (only 2 narrow exceptions) There is no such thing as a closed executive or planning meeting. Meetings by are, by definition, not open. Members have the right to speak on all designated items subject to written reasonable rules. Who controls board meetings?

45 Meeting Tips Board Meetings (Sample Rules) 1. The below-listed rules shall govern the conduct of all board meetings unless the board of directors, by majority vote, otherwise decides. 2. All board meetings shall be conducted in accordance with the requirements of the Bylaws and Chapter 720, Florida Statutes. 3. The President shall chair all board meetings. In his/her absence, the Vice President shall chair the board meeting. 4. Except in an emergency or when meeting with the association s attorney to discuss proposed or pending litigation, members have the right to attend all board meetings. 5. At least 48 hours prior to each board meeting, the chairperson shall prepare a written agenda and post the same in the clubhouse. Once the meeting commences, the board may elect to amend or augment the posted agenda.

46 Meeting Tips Board Meetings (Sample Rules) 6. Members have the right to speak at all board meetings as to any item listed on the meeting agenda subject to the following: A. Prior to each meeting the secretary shall prepare a signup sheet for those members wishing to speak. Each member wishing to speak shall print their name on the signup sheet before the meeting commences and shall designate the agenda item about which they desire to speak. If the board amends or augments the agenda after the meeting begins, the chairperson shall immediately thereafter allow members to amend their signup sheet entry should they wish to speak on a new agenda item. B. No member may speak concerning any agenda item for more than three minutes. C. Members may only speak during those portions of the meeting designated for member comment.

47 Meeting Tips Board Meetings (Sample Rules) 7. As each agenda item is raised by the board, the chair shall ensure that any member who signed up to speak as to that item is granted an opportunity to do so before the board votes on that item or, in cases where a vote is not to be taken, before the board moves on to the next agenda item. 8. Members may not interrupt each other or board members during the course of the meeting. Directors and members present shall conduct themselves in a courteous, non-confrontational and professional manner. 9. Should any member violate the foregoing rules, attempt to speak for longer than his/her permitted time or engage in disruptive or rude conduct, the board may suspend that member s right to speak for the duration of the meeting and/or future board meetings.

48 Meeting Tips Membership Meetings Members have the right to attend and speak about any item on the agenda or opened for discussion. Members may speak for at least 3 minutes on any item. The HOA may adopt reasonable rules regarding the right to speak. Who controls a membership meeting? Who sets the rules?

49 Questions & Answers

50 Records Inspections

51 Records Inspections The Law Records must be available for inspection/ copying within 45 miles of the community within 10 business days after receipt of a written request. Records may be made available electronically. Inspections may take up to 8 hours. $ fine.

52 Records Inspections The Law What about repeat inspections? Section (5)(c): The association may adopt reasonable written rules governing the frequency, time, location, notice, records to be inspected, and manner of inspections, but may not require a parcel owner to demonstrate any proper purpose for the inspection, state any reason for the inspection, or limit a parcel owner's right to inspect records to less than one 8-hour business day per month.

53 Records Inspections The Law What about the cost? Section (5)(c): The association may impose fees to cover the costs of providing copies of the official records.... The association may charge up to 25 cents per page for copies made on the association's photocopier. If the association does not have a photocopy machine available where the records are kept, or if the records requested to be copied exceed 25 pages in length, the association may have copies made by an outside duplicating service and may charge the actual cost of copying, as supported by the vendor invoice.

54 Records Inspections Tips If the request is clear and seeks less than 25 pages, make the copies and mail/ them to the owner without charge. If there will be a charge, notify the owner in advance. If the request is in any way not clear, do NOT attempt to decipher it. Let the owner inspect and locate what she wants (and use Post-It notes). If it is a trap, bring in your lawyer.

55 Assessment Collection

56 Assessment Collection - Timeline Notice of intent to lien Lien/Notice of intent to foreclose Title Search/ Foreclosure 45 days 45 days

57 Assessment Collection - Timeline Notice of intent to lien Lien/Notice of intent to foreclose Title Search/ Foreclosure 45 days 45 days Save money here!

58 Assessment Collection Save $ Is your roster up to date? Initial notices sent? Written follow-up? Correct address?

59 Assessment Collection - Timeline Notice of intent to lien Lien/Notice of intent to foreclose Title Search/ Foreclosure 45 days 45 days Hope for the best, but plan for rain.

60 Questions & Answers

61 Help is here. We are here!

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