Hi everyone! I’m going to start a new feature this week–I’ll be reprinting the question and answer column that I write with my father, Gary A. Poliakoff, and that appears in newspapers and magazines throughout Florida. It’s called New Neighborhoods, just like our book. If you have any questions for the column, feel free to send them to me through this website, or at the email listed at the bottom of each column. I hope you enjoy this new weekly feature!
By Gary A. Poliakoff and Ryan Poliakoff
Self-Management and Sidewalk Repairs
I live in a 152-unit condominium complex in Boynton Beach, Florida. Due to the hard economic climate, our board of directors wants to “self-manage” the complex. They are soliciting unit owners who have experience in bookkeeping, accounting, information technology, law, billing, reception, etc. to submit resumes to the board. These would be paid positions. Is it legal to self-manage a condo complex? Is it legal to solicit paid help from unit owners in the complex? Is a CAM license needed to self-manage the condo complex? This sounds very risky to me. We have always had professional management companies with an on-site, licensed property manager. Signed, D.S.
People assume that property management is fairly simple—in fact, it’s a very complex profession. As you note above, it involves issues of finance, law, politics and real estate. So it’s important to understand that the question of whether it’s legal to self-manage a property has to be kept separate from the question of whether it’s prudent to do so.
It is, in fact, perfectly legal to self-manage your condominium. However, in our book, we do recommend that larger communities, such as ones of your size, consider a professional manager or management company, because property management is a very specialized job that benefits significantly from training and experience. It is simply not a task that lay people can typically perform. However, as a question of condo law, volunteer unit owners are allowed to operate a condominium.
Where this gets tricky, however, is the question of licensing, and the nature and scope of the work being performed. Florida Statute 468 (Community Association Management) defines “community association management” as the performance of certain defined functions, for pay, for an association of over 10 units and a budget in excess of $100,000. Those functions include controlling or disbursing funds of an association, assisting in the noticing or conduct of community association meetings, and coordinating maintenance and other day-to-day services for the property. Any person performing these tasks must be licensed by the state. Licensing requires taking a two-day course and passing a written exam—not a serious burden, but still a basic threshold that should be met by any residential property manager. While a volunteer who performs strictly ministerial functions under the direction of a licensed manager does not need to be separately licensed, an owner or resident being paid to do any of the proscribed tasks would need to be licensed by the state. If in doubt, we’d recommend you speak to someone at the Department of Business and Professional Regulations, the agency that governs licensed community association managers.
The sidewalks in our small homeowner’s association need repair due to roots from oak trees planted by a previous board. Some believe that these trees were planted illegally. We were given an option of either just repairing the sidewalks, or getting a town-approved plan to both replace the trees with a different variety and to then repair the sidewalks. The membership voted in favor of repairing the sidewalks. Does the board need to have a special meeting to discuss this repair, even though it has already been approved? Also, what can we do to avoid this situation in the future? Signed, J.G.
First, while it’s not something you mention in your letter, volunteer board members who serve on condominium, co-operative and homeowner association boards are granted significant leeway in their decision making under the business judgment rule and will generally not be found personally liable for their actions absent a show of self-dealing or fraud. Accordingly, we would not waste time debating the decision of whether or not the oak trees should have been planted in the first instance—what’s done is done.
As for avoiding this situation in the future, it is self-evident that the trees were either planted too close to the sidewalks or were an inappropriate tree for the application if the root system is tearing up the sidewalks; so realize that this problem is likely to recur. The board may want to hire a horticulturalist to determine if the roots can be pruned, or if the trees can be relocated elsewhere on the property. If the association will not replace the trees, than you have to simply accept that this is a problem that will likely crop up again.
Now, as to the board discussing and approving the repair. It’s hard to tell from your letter why the membership was voting on the issue in the first place, unless your documents require a membership vote for large projects. Repairs that are not material alterations of the property would typically be left to the board’s discretion. We would probably have the board meet to approve the project, if only to ratify the decision of the owners.
Gary A. Poliakoff and Ryan Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Gary Poliakoff is a founding principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is the Vice President of Management at AKAM On-Site. Email questions to firstname.lastname@example.org. Please be sure to include your hometown.