New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Handicap Access to Board Meetings and Conflict of Interest

Dear Poliakoffs,

I reside in a community governed by a homeowner’s association.  The board of directors conducts its meetings at a location that is not accessible to handicapped people.  I have requested, in writing and in person, that they change their meeting place, without success.  I would appreciate direction on how to proceed.  Signed, L.M.

Dear L.M.,

If your question was whether meetings of government entities need to be conducted at a location that affords access to a handicapped person, that answer would be yes.  The problem here is that most courts have held that the conduct of community associations does not rise to the level of “state action”, thereby precluding the necessity of an association having to comply with the laws that govern municipal meetings and actions.  Community associations are private organizations governed by private contracts (and by statute).

We’re frankly not sure where to draw the line in the case of shared ownership communities.  We have had visually impaired unit owners request ear phones for meetings, and hearing-impaired unit owners request a sign-language translator.  Some foreign-speaking unit owners have even demanded that the association provide interpreters.  This can be difficult, if not impossible, to do given the diversity of unit owners from many parts of the world.  However, a number of older properties do not have handicap-accessible common areas, and the law hasn’t generally forced them to adapt to the new codes and regulations.

That said, there is one aspect of federal law that might afford you some relief.  The Fair Housing Act does provide that a handicapped person, at his or her expense, is entitled to make modifications to the common areas to afford handicapped individuals full use and enjoyment of the premises.  So if you were so inclined you do have the right to request that the board allow you to modify the location being used for meetings (for example, by building a ramp) so that you may attend.  You would have to pay for the modification, and it would need to be reasonable (in one case a woman wanted to build a ramp into a pool that covered half of the pool—that was not considered a reasonable modification).

Dear Poliakoffs,

I am on the board of directors of a condominium in Cocoa, FL.  We are in the process of accepting bids for annual condo maintenance.  The president rents his unit to his stepson and wants the board of directors to hire him for this maintenance contract.

Is this a conflict of interest, since the stepson will be paid by condo funds that, in turn, would be used to pay rent to the president?  Can the president cast a vote, or must he abstain from voting?  The president will be signing the contract.  Signed, D.B.

Dear D.B.,

So long as the president discloses the relationship, nothing in the law would preclude the board from deciding to hire the president’s stepson to work for the association.  Regardless of who the Association hires, it needs to have a written agreement that complies with the provisions of Florida Statutes 718.3025 and 718.3026.  Inclusive in FS 718.3025 is a provision that requires the disclosure of any financial or ownership interest a board member or any party providing maintenance or management services to the association holds with the contracting party.  A few years ago, board members were not allowed to abstain from voting unless there was a financial conflict of interest—but under the current law, the president may abstain from this vote if he feels it’s appropriate.  However, an abstention is still not required, though probably prudent.

If the president does hold a financial interest in the company contracting with the association (though simply collecting rent from his stepson is not a financial interest), the contract must be approved by an affirmative vote of two-thirds of the directors present at a meeting at which a quorum is present.

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 condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Public-Use Pools and Board Member Abstentions

Dear Poliakoffs,

Our condo association documents include a provision for the non-exclusive use of an outdoor pool and deck that is owned by the developer. The association pays a “fair amount” to help defray maintenance and upkeep costs (just as if it were a common element); the documents also say that the developer has the right to open the pool for public use as well. The developer has indicated he intends to sell daily and weekly pool passes to the public. Our concern is that he will sell so many public passes that there will be no room for association unit owners–we would have access to the pool, but effectively no ability to use it. The pool has a health-department restricted load of 70; the association has a total of 114 units with 558 total residents. Is there some formula that’s generally accepted as a “fair share” between the association and the owner; that is, how many of those 70 slots should be reserved for the association? The pool deck raises a similar question, as it has space for 200 users.  Signed, R.K.

Dear R.K.,

While it is not uncommon for equity clubs and golf courses (around which large planned developments are often built) to be open to the public, it is extremely rare to hear of a swimming pool and pool deck where the developer sells admission to the public. As for the definition of a “fair amount” to be paid by the association, or a “fair share” of the deck to be reserved to the unit owners, unfortunately there is no legal definition for that term, and it’s not a term that would typically be used in legal documents.  A judge would need to investigate the original intent of the developer to determine how much money should be paid for upkeep, and if a portion of the pool and deck should be reserved for the condominium.  But also, there are very serious issues involving liability and security that need to be addressed. We would strongly encourage the association as the representative of its members to have its attorney contact the developer and set up a meeting to discuss its legitimate concerns, and to draft an agreement that both establishes the exact rate of payment for the use of the pool and deck, as well as protects the rights and interests of the association members.

Dear Poliakoffs,

Our board of directors is opting to have a new, eight-person board start serving in January.  They said no one else volunteered to be on the board, which is not true.  Our bylaws indicate that the association should have a three to nine person board, the intent being to have an odd number to avoid ties.  To address this problem, our new president said she would always vote on the first round, and that if there were a tie she would “stand down” for the next vote.  Is this allowed?  If the statute indicates that all board members must vote, wouldn’t this action be illegal?  Signed, J.J.

Dear J.J.,

Your question raises a couple of separate issues.  First, a board of directors doesn’t normally choose, on its own, how many board members serve on the board.  The size of the board is normally stated in bylaws, which typically provide a mechanism for the membership to increase this number if desired.  If no number is stated, the board is made up of five members.  Many documents do also state that the board should be an odd number, to avoid tie votes.  Elections must be held every year to fill vacancies on the board.  If there are fewer candidates than vacancies on the board, elections are not held—all of the candidates are automatically seated.  If there are no candidates, then the sitting board members may be appointed to the board for a new term.  If the board is still short of the number of directors specified in the documents, then the currently serving board members would have the right (and arguably the obligation, if a qualified candidate is available) to appoint a new board member to fill the vacant seat.

As for a board member abstaining (choosing not to vote on an issue), until a few years ago the statute mandated that every director vote on every issue, with abstentions allowed only in the case of a conflict of interest.  Voting was considered a fiduciary prerequisite to board service.  However, in 2008 the Condominium Act was amended to allow board members to abstain.  An abstention is treated as if that member has taken no action.  Quite frankly, it is our opinion that a member of the board should exercise their business judgment and cast a vote on every issue being considered.  What is the point of board service if a director is, metaphorically, simply going to punt a decision to the other members?

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 condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Long-Term Guests and Mandating Flood Insurance Coverage

Our condo documents state that guests can visit a resident for up to 30 consecutive days without being considered residents, themselves. People in our building have had guests or caregivers stay with them for 30 consecutive days, then leave for a day and return for another guest pass and another 30 consecutive days. This mostly happens in the winter when an elderly person comes down for a few months with his or her nurse. Our board has been making these guests go thru the owner and resident security check and application process at the cost of $150.00, even though, according to the by-laws, these guests have to be here over 30 consecutive days to be considered a resident. I that feel that this is a dual interpretation of the by-laws. Signed, J.B.

Dear J.B.,

First, you did not indicate whether the rule limiting guests to “30 consecutive days” is a board-made rule, or a restriction contained within your condominium documents. If it is a board made rule, it must be reasonable to be valid, while a rule found in your original documents can be somewhat unreasonable so long as it does not violate a fundamental right.

Second, there is a difference between a “guest” and a “caregiver.” Most authorities agree that a caregiver is not subject to limitations on guest rules, nor are they counted against individuals below the age of 55 in communities for older persons.

Now, that having been said, assuming that the rule is valid and enforceable, then there would be nothing which would preclude someone from leaving for a day and returning for an additional 30 days, as you’ve described. That is why it is critically important that all rules and regulations be written in a clear and concise manner.  Your board probably does not have the power to force these guests to go through the owner/resident application process, even if they are using a loophole to get around the association rules.  The only solution would be to amend the documents and close the loophole.

Dear Poliakoffs,

I read in a recent column that it is up to unit owners to convince their boards to provide flood insurance for their associations, as the Florida statute does not make flood coverage mandatory.  Our board provides 80% coverage, but my mortgage provider requires 100% coverage, and has force-placed a flood policy on my behalf.  If I get a lawyer and pursue the issue for the extra 20%, do I stand a chance of winning?  I’m just asking because I’m already way underwater with my condo, trying to do right by my mortgage commitment as I slowly deplete my retirement savings.  So, I really don’t want to spend the money for a lawyer if I’m going to lose.  However, I would like to take a stance and, maybe if I win, the Florida legislature would amend the statute to require 100% flood insurance coverage in FEMA-specified flood areas.  Signed, J.S.

Dear J.S.,

The question, really, is what would you gain through your lawsuit?  Let’s assume that you are successful in forcing your condominium to secure the extra 20% coverage you require.  The money required for this new insurance policy would be passed directly through to the owners in the form of higher maintenance charges, and it would likely be the exact same amount it would require for you to purchase the policy yourself.  It’s six of one, a half-dozen of another.  Ultimately, you’re going to pay for the flood coverage, whether it’s paid to your mortgage provider or to the association itself.  The issue is with your mortgage provider, and the federal government.

Here’s the breakdown on flood coverage in condominiums.  Nearly all flood insurance is provided through the National Flood Insurance Program, or NFIP.  The NFIP provides either 100% replacement coverage on a unit or $250,000 worth of coverage, whichever is lower.  In your case, it sounds as if your unit is worth less than $250,000, and the association has decided to purchase only 80% coverage per unit (80% coverage is generally the minimum required for other, more complex reasons).  By federal law, any property that is covered by a federally-insured mortgage must be protected by a maximum-value flood policy.  So it’s actually the federal government that is mandating that you buy flood insurance, not Florida.  Now, we agree that it’s absurd for any mortgagee to require a condominium unit owner to buy flood insurance when that is ultimately the obligation of the association, especially if the unit is not on the first floor of the building. But the Florida Legislature cannot resolve this issue. All Florida could do is mandate that condominiums purchase these maximum policies, which would simply result in all unit owners paying higher maintenance fees.  What you really need is for congress to change the federal flood insurance requirements for borrowers and lenders.  Do note, however, that force-placed policies may be more expensive than what you can buy through an insurance broker—you should contact one to get the best price on the extra 20% coverage you need.

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 condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Parking Rules, Non-Owner Boards and Multi-Condominium Funds

Dear Poliakoffs,

We live in a 135-townhouse HOA development.  Since the development opened, there has been one nine-space parking lot used for overflow parking for residents and tenants.  Recently, the HOA declared this lot can only be used for “guest parking”.  Others are subject to towing.  No guidelines were ever published, and some guests have been ticketed.  In one case, the security guard and a guest nearly came to blows because the guard did not believe that the person was a guest since the car had been in the parking area a “long time”.  Nothing in the original documents designate this lot as being for guests only.  Can the HOA declare what was once a common area off limits to residents and tenants?  If so, can the residents be compelled to pay for an area for which they do not have access?  Is there an option to appeal to local or state agencies? Signed, A.K.

Dear A.K.,

It is within the board’s discretion, absent a provision in the covenants, conditions and restrictions to the contrary, to pass reasonable rules and regulations governing the common areas; that would include a parking lot.  The truth is that few communities were designed with sufficient parking spaces to accommodate multiple family cars, handicap parking and parking for guests.  To be honest, assigning nine parking spaces for guest-only use only does not sound particularly unreasonable.  Assuming this is association-owned property, local and state agencies are unlikely to get involved.

Dear Poliakoffs,

Our HOA documents state that a board member must be an owner and resident of the community.  Does “owner” include a spouse if that spouse’s name is not on the deed or tax record?  Does the term resident refer to being a legal Florida resident (homesteader) or just residing in the unit on the property?

If someone is currently serving on a board and does not qualify under the terms of the documents what are the recourses available to the unit owners with regard to removing the person and reversing any actions, contracts, expenditures or other matters that the person authorized in any way while serving in the unauthorized position?  Since all board members signed that they have read and understood the statues and documents would there be any possibility of criminal charges?

We have an election coming up so I would appreciate a reply to these questions as soon as possible.  Thank you for all your past advice and any assistance you can provide now.  Signed, M.O.

Dear M.O.,

In a situation where the governing documents require that a member of the board be an “owner,” the spouse of a record title owner whose name is not on deed would not qualify to serve on the board. If a person is currently serving on the board who is not otherwise qualified, they are deemed to not be a board member; period. They cannot serve, and any action that they take, such as voting, would be deemed null and void. Now, a third party has the right to rely on the legitimacy of an association president being a valid decision-maker in signing contracts—so if the board member was the president, the contracts he or she entered into on behalf of the association would still be enforceable.  Otherwise, those would be unenforceable, as well.

In so far as what constitutes a “resident” where the documents are otherwise silent, it would be a person who’s primary residence is the unit, whether or not they have filed for a homestead exemption. Serving without authority on a board would be a civil, not criminal, violation of the law.

Dear Poliakoffs,

We are a multi-condominium with three buildings and three budgets. Can the operations account monies be commingled with expenses for one condo building that doesn’t have the funds to pay for certain damages? I was under the impression that my condo fee was for my building repairs and my building’s reserve funds. The building in question opted out of the reserves for one year and now doesn’t have the funds needed to do the repairs. I understand that common element expenses are shared, but can a single association in the multi-condominium use funds from the other buildings for their own expenses?  Signed, D.S.

Dear D.S.,

Although the operating funds and reserves of separately declared condominiums operated by a single association (a multi-condominium association) can be commingled into a single account, the association must maintain separate books and records for each condominium it operates, including the reserve funds, and it cannot use the operating funds or reserves of one condominium to pay for expenses of one of the other condominiums. There should be four separate budgets; one for each of the condominiums and one for the shared expenses of the three condominiums. A unit owner of one condominium should not be paying the cost of operation of another of the condominiums.

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 condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Apathy, Covenant Enforcement and Renter Rights

Dear Poliakoffs,

We have a situation at our condominium–only one person has served on the board for several years, as no one else was interested.  When nothing was being done to maintain the building, we asked to see the financial records.  Two months later, with no response, we sought arbitration from the state and it was approved.  The president then hired counsel who sent a letter stating the property manager (who was fired after all this started) had not been given all the paperwork from the state.  Since then the attorney is refusing to cooperate.  What is our recourse?   Signed, D.M.

Dear D.M.,

Unfortunately, the shared ownership concept cannot work if unit owners are not willing to volunteer their time to serve on boards and committees.  The apathy that you are seeing at your property is the same apathy that we typically see in the broader national democratic process.  And, the answer is not simply to hire a management company to run the property.  It’s the board’s job to create the policies that a property manager follows.  If this doesn’t happen, buildings deteriorate due to the lack of maintenance, property values drop, and no one can account for association funds.

As the old saying goes, “It is better to light a single candle than to cure the darkness.” Become a leader in your community.  Organize a slate of directors to run for the board, and recall the sole sitting board member.  Once elected, bring in fresh, unbiased professionals to get your books and records in order and your property back to the standard you expected when you purchased your home.  The only way to solve this problem is for someone to take the bull by the horns and just do the work that’s required.

Dear Poliakoffs,

Our HOA is enforcing a landscape covenant requiring three palm trees in the front of each home as the builder and core communities (now defunct) had designed.  Over the years, the palm trees have died, and the landscape committee has approved some homeowners to replace the three trees with a single Christmas palm with three trunks.  This approval was later rescinded.  When our home was built, the landscaper put in one palm tree, which he stated was the requirement for our street as the home fronts are small.  Now that we are selling our home, we were sent an inspection report via the buyer’s title company that we are not in compliance.  The HOA is assuming that all homes on all streets in the community must have three palm trees in front.  Almost every home has one palm tree, except for those that were resold.  The HOA is requesting removal of the one palm and replacement with three new palms, to include permit fees and other costs.  Is this legal?     Signed, J.B.

Dear J.B.,

The Florida Homeowners’ Associations Act (Chapter 720) has very stringent guidelines when it comes to architectural controls and homeowners’ rights and privileges.  First and foremost, the authority of an HOA or architectural control committee to review and approve plans for architecture or other improvements located on a parcel is limited to the extent that the covenants, conditions and restrictions (CC&Rs) grant the board or the architectural control committee such power. In doing so, they must conform with the general principles of waiver and selective enforcement—if an association waits to enforce a rule against owners for a long period of time, or if they enforce the rule against some owners, but not others, that rule generally becomes unenforceable.  While the board might be able, prospectively, to require future landscaping to be in conformity to the initial landscape plan by declaring their intention to abide by the CC&Rs from a stated time forward, it is doubtful that the board, given the passage of time, could retroactively require any property owner to remove previously placed landscaping.

A more challenging issue is the HOA’s compliance with the Florida Friendly Landscaping Law.  That law prohibits HOAs from denying a homeowner the right to install Florida-native landscaping that is compliant with the law.  Florida Friendly Landscaping is found when Florida-appropriate native or habitat-friendly plants are used in the right places, watering is done efficiently, fertilizing is done appropriately, mulch is used, wildlife is attracted, yard pests are managed responsibly, yard waste is recycled, and storm water runoff is significantly reduced.  The law is designed to reduce the use of water and reduce water pollution.

Dear Poliakoffs,

Could you please advise where I can find the law stating that usage rights are transferred to a tenant when a condominium is rented?    Signed, R.D.

Dear R.D.,

Florida Statute 718.106(4) provides that when a unit is leased, a tenant should have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners, and that the unit owner should not have such rights except as a guest, unless the tenant waives these rights in writing.

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 condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

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!

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Self-Management and Sidewalk Repairs

Dear Poliakoffs,

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.

Dear 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.

Dear Poliakoffs,

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.

Dear 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 condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

Hello again!  My apologies for my brief delay in writing this blog–it’s been an incredibly active fall for me.  Let me get everyone up to speed.

For the past year I had served as the president of a property management company in Weston, Florida that specialized in homeowner’s associations.  It was my intent to purchase that company and turn it into a boutique, full service management firm dedicated to top-quality performance.

Unfortunately, as is often the case in the current market, the bank that was doing the financing got cold feet and after some soul searching I decided to pull out of the deal.  As you can imagine, that time period was particularly stressful and overwhelming, and I pulled back on writing this column for a bit.

Happily, I have now settled with a company that I have always respected tremendously, AKAM On-Site, a property management company in Florida that specializes in high-end properties with site managers.  I am serving as the Vice President of Management for Akam, and my job is to help oversee our dozens of clients and to make sure that the managers are all well trained and supported.  It’s a fantastic job with a fantastic company, and I couldn’t be happier.

This also means that I will now be back in the blog saddle, reporting to you on the issues that you as board members and volunteers will need to address regularly.  You’ll see articles on voting and annual meetings, special projects, crazy residents and boards that just need a little love to get along.  In addition, I’ll be posting the weekly newspaper column that I write with my father, Gary Poliakoff, featuring questions and answers from homeowners and board members.  So thank you for understanding my brief hiatus, and look for my first new post within the next week!

Welcome again to Stucco Blues!  If you recall the last two columns, our subject condominium, only a few years old, had discovered that large pieces of stucco were falling off of the building.  So the board shut down the majority of exterior areas around the building (including the pool, tennis court and recreation deck) and immediately began interviewing contractors for a very large and expensive restoration/reconstruction project.  When we left off, the board had chosen the final contractor and was waiting to begin work.

It is now almost two months into our restoration project, and it has been a doozy.  Up to five swing stages (those large mobile platforms you see dropped along the sides of buildings) are operating on a constant basis, and this is only to complete a small portion of the building (the side that faces the pool, so that we can reopen this extremely important South Florida amenity).  Still, as with any large project, you tend to run into unforeseen issues.  For example, upon removing large areas of stucco it became evident that the stucco had been used to “square up” the building in areas where the concrete wasn’t poured exactly right.  For example, one corner of the building may have only come to an 85 degree angle, instead of a 90 degree perpendicular edge.  Now, obviously you can’t build a building and leave it cockeyed.  Most of the time the non-square areas would have been built up square with structural cement–in this case they were built with stucco.  We have seen areas where the stucco is six or more inches thick, huge slabs that were hanging onto the building by no more than caulk.  Normally, stucco is meant to be applied as a thin sheet, perhaps no more than a quarter inch.  The way the stucco was applied in these areas was completely untenable, and justified the board’s decision to go ahead with the full reconstruction.  It does also raise the basic reality that any construction or restoration project will have unforeseen costs.  In this case, the board can’t leave the building off-kilter–the non-square areas will now need to be built up with structural material, and THEN covered with a thin layer of finishing stucco–adding to the cost of the project.

Nothing ever goes quite as quickly as expected, either.  We’ve had a couple of near misses from hurricanes this season, and each time it looks close the contractor has to secure their equipment and swing stages and stop working.  Between that, and dealing with the frequent Florida rains, we’re perhaps a couple of weeks behind our original schedule.  But things are looking up–as early as this weekend management feels that they will be able to open the pool on Saturday and Sunday, when the contractors are not working!  This will be a gigantic boon to residents, who have been without their favorite amenity for many months now, through almost the entire summer.  But the board and the contractor’s initial reticence to open up the pool proved to be a fair decision–not only has the restoration project created significant debris, some of which has fallen around the pool area, the dog walk and even reportedly on the neighbor’s parking lot (very small, lightweight pieces, yes, but debris all the same), but the deconstruction uncovered areas of stucco that we even thicker and less attached too the building than initially expected.

So as we approach the second phase of our project (the post-removal restoration) what are some of the lessons that we’ve learned?

1) Trust the opinion of your engineer.  Your association hires an engineer because they want an expert opinion–don’t second guess that expert opinion because it’s inconvenient or unpleasant.

2) Expect the unexpected.  No construction project of any kind goes the way it was planned.  If it’s a deconstruction project, you will always find something underneath the surface that needs to be analyzed or fixed.  If you plan on your project taking 2 weeks, assume it will take 4.  If a month, plan on 2.

3) Expect some homeowners to give the board a difficult time, no matter what the outcome.  In addition to the fact that some homeowners will always feel that remediation projects are unnecessary (often despite voluminous evidence to the contrary) even supportive homeowners will be inconvenienced by the construction.  For example, every balcony being resurfaced has been shut down for an extended period, with no owner access, and owners were required to remove all of their furniture from their balconies, as well.  Management should be sympathetic to these inconveniences and try to ameliorate them whenever possible, but also understand that the responsibility of both management and the board is to do what is proper for the building and the common elements as a whole–not to be bullied by any fraction of unhappy homeowners.  Still, management should make sure that they are always keeping owners well informed of the progress of the project, and that includes notifying out of town residents as well (whether by mail, email or phone calls if necessary).  So be respectful, responsible, but also be confident in the decisions of the board.

In the next installment I’ll update readers about the resurfacing process, as well as detail any difficulties that arose in our attempts to reopen the pool area.

As many of you know, I write an article with my father, Gary A. Poliakoff (co-author of New Neighborhoods), that appears in over a dozen newspapers throughout Florida.  Our column this week was the result of a question sent to me through my blog, so I wanted to share our answer with my readers.  Enjoy!

Dear Poliakoffs,

I have lived in a Florida HOA community now for a year and a half, and other residents have lived there over two years. Although the bylaws do state that no trucks over one-half ton are allowed on the property (which is basically any truck), the new board wants to begin enforcing that bylaw while ignoring other types of violations, even by the board members themselves.

Can the board just now start enforcing this rule, and what about their own violations? How can we ensure that the board members themselves are following the rules?  What the board has now done is to draw up a community rule book with changes to the rules–to us it seems that this would require modification of the documents, which would require a majority vote.  Signed, R.H.

Dear R.H.,

Your letter raises a number of separate issues about covenants and how those rules are enforced.  Let’s deal with the last issue first. Rules that govern owner conduct can be found in several different documents relating to a community association, including the declaration of covenants, conditions and restrictions (or declaration of condominium), the bylaws (which are a separate document that usually specifies how the association is governed) and in a separate set of rules and regulations.  Most association boards have the power to promulgate new rules to be followed by members, although those rules cannot override rights granted in the more-senior documents.  Remember that all community documents follow a hierarchy–the declaration is the most important, then the articles of incorporation, then the bylaws and then the rules and regs.  So, for example, if your declaration were to state that owners are allowed to keep pets, a board could not pass a “rule and regulation” prohibiting pets.  To change that rule would require an amendment of the declaration.

So, on your last point, you say that the board has promulgated a new rule book.  If the board is changing rules that were written by the board of directors in the first place, or if they are adding new rules that do not conflict with the other documents, that would be fine, assuming that they have given the owners proper notice of the rules changes and an opportunity to discuss the changes at an open board meeting before a vote (check out Florida Statute section 720 for more information on access to HOA board meetings and notice requirements.  We also discuss this issue in detail in our book).

Now, as for the trucks; you state that the rule prohibiting trucks is in the community bylaws.  There are generally two defenses to application of a rule–selective enforcement and waiver.  Selective enforcement means that the board is enforcing a specific rule against some owners, but not others.  The defense would not, however, take into account the board’s enforcement of other unrelated rules, just the rule that is being challenged.  Waiver occurs when a board fails to enforce a rule for so long that it is deemed to have abandoned enforcement of that rule.  It sounds like your community is fairly new, so waiver might not come into play.  It is perfectly legal and proper for a board to begin enforcing a rule that has been ignored by other past boards.  If too long a period has passed (and “too long” is a legal decision to be made by a judge or jury based on the specifics of the dispute) then the board can announce to the community that it will begin enforcing the rule, and any who have been violating the rule up until that point would be “grandfathered” in, and not have to follow the rule.

As far as the board failing to enforce other rules, even against themselves, there are a few issues.  First, if the board is specifically ignoring their own violation of a rule, but they then try to enforce it against another owner, that person would have a selective enforcement defense.  If the board is enforcing certain rules against everyone, but ignoring others, well, that’s pretty common.  Every unit owner has the right to avail itself of the court system to enforce community covenants  against other individual owners.  But barring that, the only options available to owners-at-large would either be to attend a board meeting and convince the board of the need to enforce the rule, or, if they refuse, to recall the board and replace them with a board that is willing to follow the covenants.  A condo or HOA board can generally be recalled by a majority of owners at any time, for any reason–and it can even be done by written petition.  Recalling a board is actually quite easy under Florida law.  Getting the agreement of a majority of owners, however, can prove far more difficult.  Good luck!

For today’s blog, we have something a bit different.  Laura, from Flagstaff, Arizona, wrote a very nice article that I wanted to share with you that details some of her own frustrations in moving into a new home in a shared ownership community (not the one pictured, by the way).

For me, the entire purpose of this blog is to allow people to share ideas and comments that help us navigate the complex, and not always positive, world of shared ownership.  Frustrations and negative experiences are certainly part of that experience, and I’m happy to be able to share the thoughts of one of my readers.  Once you’ve read Laura’s article I encourage you to post your own comments or suggestions to help Laura and her community get back on the right track.  Is Laura’s story just one of a bad SOC with bad neighbors, or is it a failure of the system?  In my next blog I’m going to provide my own thoughts, but first I am interested in seeing what our readership has to say.  Fair warning, though–I’m going to remove any comments that are either ad-hominem attacks on SOC’s or even blind praise.  This isn’t a cheerleading contest for one side or the other in this ever-present debate–it’s an opportunity to constructively help a frustrated owner, using our own experiences as a guide.  So I hope you all enjoy this experiment, and if you would like your own condo or HOA story posted, please email it to me through the website–I’d be happy to consider all articles for future publication.  I don’t make a dime off of this blog–I do it purely for the sake of doing so.  So all thoughts and comments are welcome!

A Flagstaff Community Experience

by Laura

When my husband and I first moved to Flagstaff we were filled with expectations that we would be raising our son in a community environment with lots of safe activities, friends, and great schools. At the time, the housing market was booming and looking for a house that we could afford was difficult. Our choices were an older home in lower Greenlaw that may or may not have turned into a money pit and a brand new condo on the edge of Sunny Side that would have a home warranty.

Having never lived in an apartment or a condominium, the prospect of being so close to our neighbors did not sound appealing; but the community that was being built had promise. All of the people who lived in the complex of only 11 units were professionals, they were around our age, and the ones that had already moved in had formed friendships. We were looking forward to becoming friends with them and becoming a part of the community.

Another thing that made an impact on our decision was the fact that the complex had an owner’s association with a set of Conditions, Covenants, and Restrictions–otherwise known as CC&Rs. Having been a part of an HOA down in Phoenix we thought that having CC&Rs would keep the property looking nice and provide for neighbors who wouldn’t get, in our view, “too crazy”. That’s what we thought, but that is not what happened.

My first encounter with our neighbors was actually an encounter with their dogs. Before we moved in to our new place my husband and I wanted to paint the walls. So every day I would go over to the condo, park in the community parking spot outside our unit, and take my son upstairs to play with his toys while I painted the walls. One day my 2-year-old son was not feeling well so I carried him back down to the car. As I reached the door two small dogs came tearing out into the driveway and jumped up at me and my son. My son started crying as the couple who owned the dogs came out of their unit, called the dogs to them, looked at me like “who the hell is that,” and then turned and walked down the drive to take their dogs on a walk. I put my son in his car seat and picked up his sock that one of the dogs had taken off of his foot. In the commotion I thought that he had started crying because he was startled awake by the dogs but as I put his sock on I discovered that the dog had bitten his foot and left a mark.

Now, the CC&Rs that we all signed when we moved in says that all pets must be on a leash, but I didn’t even know the couple’s names yet and I wanted to fit in and be a part of this community. I didn’t want to start off on the wrong foot by picking a fight over their lack of leashes. Besides, my son was fine, they never broke the skin; they were just over-excited dogs. Right? Yeah, well, that’s what I thought. And I regret my decision to keep my mouth shut every day.

My next encounter with this community was after we had moved in. My husband had painted the garage floor, so we were parking in the parking space by our unit until it dried. One of the neighbors that I had met when we were looking at the place came over and knocked on my door. She asked me if I could move my car because she had company coming and told me that “they,” meaning all the units who moved in before us, had agreed that those spaces were to be for guests only. I politely agreed to move my car and suggested that we clean up the empty garages of the two units still under construction and use those for additional parking. In fact I decided that I could show how I was a good neighbor by cleaning out the garages myself and letting whoever needed them to park there.

When my husband came home and I told him what had transpired that day he was not happy at all. What I didn’t know at the time was that the woman’s husband’s car was parked in the parking spaces for two weeks while we were trying to move in. I had to haul boxes from the street to the condo because our garage was filled with construction stuff, and his car and one of the workers were parked every day in the spaces that they all agreed would be for guest parking. On top of all of this, after I cleaned out both of the garages he pulled his car out of his garage and parked it in the freshly swept garage.

These kinds of situations, though small, have plagued us for the past five years. The owner’s association is run by the homeowners, and so none of the rules are enforced and complaints as to breaking the rules are brought up based on who is liked or disliked. Some people get a free pass because of who they are and some people don’t. It’s the small things that add up, the little indecencies that people do to you that wear you down until you can’t go outside anymore because you don’t want to see or have to interact with your neighbors.

I have two children now and I feel like a prisoner in my own home. I don’t want the kids to play outside because I’m afraid the neighbors will accuse them of breaking something. My husband won’t work on any projects because he is afraid that we will receive complaints about noise or probing questions about what he is working on and people would begin to tell him he can’t work on certain things in his own garage. As I am writing this our neighbor is playing with their dog in the common area that is up against our unit. If I were still asleep I might be annoyed at his yelling and I could mention the infraction if I wanted to. After all quiet time doesn’t end until 8 am, but I have learned that it’s okay for him to do whatever he wants to do and if I say something I will just end up black balling myself even more.

Is there hope for this community? Normally I would say yes, but we are dealing with a community that wants to be isolated from all reasoning and the few who are smart are bailing ship before it sinks. 80% of the condos in our complex have lost value to the point that they are upside-down. Everyone knows it because one of the units that was bought before the market boomed sold for what was owed on it. One person managed to get a loan on another house, moved and is now walking away from their condo. Another person is trying to sell their house as a short sale. Loans are hard to come by for condos. You can’t get an FHA loan on them, which means you have to put a rather large down payment on one and you can’t refinance because you’re upside-down. Foreclosures and short sales are just going to make that worse. The only option for someone who wants to get out of this upside-down community is to rent out their condo but we can’t do that either.

When the period of declarant control was over and the owner’s began to rule themselves in this inconsistent discriminatory manner a motion was made to add an amendment to the CC&Rs to prohibit the renting of units. No one knew if the association could do this but one of the neighbors who was a lawyer insisted that we could. He made a motion to change the CC&Rs and those objecting were outnumbered. The lawyer neighbor was entrusted with drafting the new amendment along with the rest of the board. Instead of the board discussing the language of the amendment and having it approved by the membership, he drafted the document and had the president of the association sign it and filed it with the county. For years, all of us thought that we had done the vote correctly and that the amendment could not be changed unless another vote was taken with 75% of the members in agreement. That is, until one of our neighbors discovered that the Arizona Revised Statutes says that our right to rent could not be taken away without the vote to do so being unanimous. The amendment should have never been filed because a proper vote was never taken, but the lawyer/neighbor went ahead and did so.

Now the already financially broke association is facing the prospect of a lawsuit and it’s not a matter of if a lawsuit will happen, it’s a matter of when. Our neighbor who discovered the error is buying a new place and is going to rent his condo. If the association tries to enforce the amendment he will take them to court. If the association does not enforce the amendment one of the other neighbors that are against renting will take the association to court. We presented this dilemma to the association and asked for the amendment to be repealed since it was done illegally, to save everyone the hassle of a lawsuit. Besides, renting would give those people who are struggling an option other than foreclosure, and that would be beneficial to everyone. The vote was 6 to 5 in favor of repealing the amendment but we need 75% in agreement in order to change the CC&Rs. The kicker is that the neighbor who is short selling their place voted against being able to rent. Apparently they would rather foreclose on their property and turn away potential buyers who want to rent out the condo in order to keep the community that they are leaving rent free.

Now I ask you. How do you reason with a person like that? Someone who is willing to strap a bomb to their chest and blow up their credit? Is it done out of spite? Are they thinking, “If I can’t get a new place no one will without feeling the hurt?” I don’t know and it boggles my mind. My husband and I want to get a house as well. We have two growing boys who need more space and we want neighbors who don’t feel like they are entitled to tell you how to live our lives. But we don’t have money for a lawyer. We barely have enough for a down payment because my husband is a teacher and I am going to school to finish my degree.  This semester I am planning on putting my youngest in daycare so that I can get a part time job to help pay for school. Paying for daycare will take half of my paycheck. So for now we will try to hold up our heads while we walk the green mile down the driveway to the mail box and back wondering if we will ever be able to move on away from this place and come home to a house of peace instead of a condo with eyes and ears that is ready to pounce on every wrong move.