It’s the Manager’s Fault…Or Is It?

Rembaum’s Association Roundup | Jeffrey A. Rembaum, Esq., BCS

Few professions have more demands placed upon them than that of the Florida licensed community association manager (CAM). Depending on whom you ask, the CAM is the organizer, rules enforcer, keeper of secrets (meaning confidential and statutorily protected information not limited to the medical record of owners and attorney-client privileged information), best friend, the “bad guy” (a frequent misconstruction), and the first person in the line of fire when things go wrong; in other words, the one who takes all the blame and gets little credit when things go right.

When things at the association go wrong, what comment is most likely heard? “It’s the manager’s fault!” But, is it? Unless the manager failed to carry out a lawful directive from the board, breached a management contract provision, or violated a Florida statute, then in all likelihood, the manager has no culpability. CAMs are licensed by the State of Florida pursuant to Part VIII of Chapter 468 of the Florida Statutes, and there are statutory standards by which CAMs must conduct themselves.

Pursuant to §468.4334, Florida Statutes, “[a] community association manager or a community association management firm is deemed to act as agent on behalf of a community association as principal within the scope of authority authorized by a written contract or [Read the Rest]

Should Emails Between Board Members & Managers Be Considered Official Records Subject to Members Inspection?

Rembaum’s Association Roundup | In today’s instant world, email allows us to express our thoughts anytime, anywhere. So often, emails serve as a substitute for making phone calls. If a phone call is made from a board member to a manager, absent a deposition of either party or a contemporaneous note documenting the conversation, the content of the communication remains private. But, if the board member sends an email rather than calling the manager, that email is considered a written record of the association and is required to be produced as a part of a member’s official record request, with limited exception as discussed below.

With the sheer volume of emails received by a manager from owners, board members, purchasers, contractors, and lawyers, etc., there is no practical method of separating the emails which must remain confidential. This includes emails with respect to attorney-client privileged matters, personnel matters, information obtained in connection with a sale or lease, social security numbers, and medical information, etc., and separating these emails cannot occur without the manager or [Read the rest]

Implications of Governor’s Newest Executive Order on Florida’s Community Associations

Rembaum’s Association Roundup | Effective May 3, 2021 at 4:06 P.M., Governor DeSantis, by way of Executive Order 21-102, suspended all remaining local government mandates and restrictions based on the COVID-19 State of Emergency.

In short, this Order provides that all local government COVID-19 restrictions and mandates on individuals and businesses are hereby suspended.  However, this Order does NOT address private rules enacted by Florida’s community associations.

Remember that in order for a community association to use the statutory emergency powers, there must be a State of Emergency declared by the Governor. Therefore, since the Governor’s declared State of Emergency remains in effect through June 26, 2021, community association  boards of directors may still rely on the use of the statutory emergency powers. However, please remember that in order for a community association to use the statutory emergency powers there must be a nexus between the power being utilized and the actual conditions taking place at the association. In other words, a community association cannot just exercise the emergency powers  because it is convenient.  There should be a nexus.

Executive Order 21-102 can be viewed by clicking HERE.

Emergency Order Extended | Omnibus Legislation Affecting Associations | CAM CE Breakfast Returns

Rembaum’s Association Roundup | Jeffrey A. Rembaum, Esq., BCS

Governor Extends Emergency Order

On April 27th, 2021, The Governor extended the State of Emergency through June 26, 2021. You can view the document filing HERE.

Omnibus Legislation Affecting Community Associations May Have Huge Impact

Senate Bill 630, which is referred to as this year’s community association omnibus bill because it contains so many changes to Chapters 718, 719, and 720 of the Florida Statutes, sailed through the Florida House and Senate. Presently, it is on the way to the Governor to sign into law. Once that happens, unless otherwise provided in the Bill, the legislation will take effect in July 1, 2021. While Kaye Bender Rembaum will be publishing summaries of all of the new laws, for those that cannot wait to read the Bill it can found by clicking https://kbrlegal.com/links/.

In case you missed it, please check out [Read the Rest]

Vaccination ID’s; To Require or Not to Require | Association Liability Protection | Upcoming Events

Vaccination ID’s: To Require or Not to Require, That Is The Question

Florida’s community association board members are wrestling with many amenity re-opening decisions these days. One such decision is whether or not to open the community clubhouse including the card rooms, bingo, and even off-Broadway like shows. As a part of that decision making process, board members may be considering requiring proof of vaccination as a pre-requisite to such use.

While ultimately a decision within the business judgment of the board, requiring proof of vaccination prior to allowing use of an association amenity is not recommended. Do you remember the ol’ adage, “no good deed goes unpunished?” Well, requiring proof of vaccination from the members prior to allowing use of the clubhouse, no matter how well intended, could likely lead to significant and costly problems for the association who fails to heed the warnings set out in this article.

When acquiring medical information of members, the board’s duty, pursuant to relevant law, is to keep such acquired medical information confidential. Requiring proof of vaccination to use amenities will no doubt lead to a significant breach of that duty.

Another reason not to require proof of vaccination is that doing so will lead to creating two classes of members. The vaccinated members who are allowed to use the amenities and the unvaccinated members who are not allowed to use the amenities. Yet, all members pay for access to use the amenities in proportion to their assessment obligation. Therefore, this practice could expose the association to adverse litigation from the upset unvaccinated members.

If the aforementioned two reasons are not sufficient to dissuade you, then consider this: A member may choose not be vaccinated for religious reasons. In this situation, by requiring proof of vaccination the association will be exposing itself to a claim of religious discrimination.

If the association opens an amenity, then the amenity should be available to all members for use without consideration of vaccination. If that is a concern, then perhaps waiting a short while longer to open the clubhouse or other amenity makes the most sense. Remember, too, that when you do re-open to adhere to CDC protocols as may be appropriate for your community such as mask wearing, social distancing, and sanitizing. As a part of the re-opening procedure, please consult with your association’s attorney regarding the do’s and don’ts.

Community Associations Protected by Limited Liability Law

[As presented by Community Associations Institute Florida Legislative Alliance]

On Monday, March 29 Governor DeSantis signed SB 72 into law granting liability protection to businesses and entities, such as religious institutions and community associations, from lawsuits related to COVID-19 exposure if they made a good faith effort to follow all federal, state, and local public health guidelines.

The protections provided in this bill are important to CAI Florida Legislative Alliance (CAI-FLA). CAI is honored to have been a part of the Florida RESET task force, a coalition of organizations dedicated to reopening Florida safely that assisted in drafting and passing this legislation. In August of 2020, this working group announced their three priority legislative proposals, each of which were included in SB 72 which has been signed into law.

Specifically, the RESET Task Force’s draft legislation authorized limited cause of action for COVID-19 related claims with:

  • a heightened culpability standard: to establish liability, the defendant must have acted with gross negligence or intentional conduct;
  • a heightened evidentiary standard: clear and convincing evidence is required to establish liability, rather than a mere preponderance of the evidence; and
  • a shortened statute of limitations.

Upcoming This Week

April 6 | 9:00am-4:45pm
KBR Legal at the Palm Beach Expo Booth 23

We will also present two CE courses:
10am: Updating Your Government Documents. With Allison L. Hertz, Esq., BCS
2:45pm:
 2021 Legal Update. With Michael S. Bender, Esq., BCS

RSVP HERE

April 7 | 12:00-1:00pm
Association Insurance: Top FAQ’s & Concerns
With Allison L. Hertz, Esq., BCS and Brendan Lynch, EVP of Plastridge Insurance.

RSVP HERE

April 8 | 11:00am-12:30pm
Top 10 Common Mix-ups and Misperceptions of Condominiums and HOAs.
With Allison L. Hertz, Esq., BCS and Shawn G. Brown, Esq., BCS.

RSVP HERE

April 9 | 10:00am-12 Noon
Condominium Board Member Certification
Course # 9630075  |  2 CE credits in IFM or ELE. Fulfills Florida requirement for new condominium board members. With Andrew Black, Esq., BCS.

RSVP HERE

The 2021 Florida Legislative Preview, as Related to Community Associations | The Good, The Bad and The Ugly

Welcome to Rembaum’s Association Roundup’s 2021 legislative preview. The 2021 legislative session began on March 2 and ends April 30. Not only are all of the Bills discussed below subject to multiple changes, whether any of the Bills discussed below will become the law of the land remains to be seen.  Unless otherwise clarified, the proposed legislation discussed below applies to condominium, cooperative, and homeowners’ associations.

House Bill 7 provides for relief from liability for Covid -19 related claims. This Bill provides protection from claims for damages, injuries, or death. While community associations are not specifically named in the legislation, corporations not- for- profit are included as are for profit business entities and charitable organizations. Corporations not- for- profit include the overwhelming majority of Florida’s community associations. At the time a plaintiff files a lawsuit at the courthouse, the plaintiff must also submit an affidavit signed by a physician actively licensed in the state of Florida which attests to the physician’s belief, within a reasonable degree of medical certainty, that the plaintiff’s Covid – 19 related damages, injury or death occurred as a result of the defendant’s acts or omissions. At this very early stage of the proceedings, admissible evidence is limited to the evidence demonstrating whether the defendant made a good faith effort to substantially comply with authoritative or controlling government issued health standards for guidance at the time the cause of action accrued. If the court determines that the defendant made such a good faith effort, then the defendant is immune from civil liability. If the court determines that the defendant did not make such a good faith effort, then the plaintiff’s case may proceed. However, absent at least gross negligence proven by clear and convincing evidence, the defendant is…Read the full article at Rembaum’s Association Roundup

Selective Enforcement: A Grossly Misunderstood Concept

Without exception, the affirmative defense of “selective enforcement” is one of the most misunderstood concepts in the entire body of community association law. How often have you heard something like this: “The board has not enforced the fence height limitation, so it cannot enforce any other architectural rules”? Simply put, nothing could be further from the truth.

When a community association seeks to enforce its covenants and/or its board adopted rules and regulations, an owner can, under the right circumstances, assert an affirmative defense such as the affirmative defense of selective enforcement. An affirmative defense is a “yes I did it, but so what” type of defense. In civil lawsuits, affirmative defenses include the statute of limitations, the statute of fraudswaiver, and more. However, it’s just not as simple as that. For example, a fence height limitation is a very different restriction than a required set back. Under most if not all circumstances, the failure to enforce a  fence height requirement is very different from the failure to enforce a setback requirement. Ordinarily, the affirmative defense of selective enforcement will only apply if the violation or circumstances are comparable, such that one could reasonably rely upon the non-enforcement of a particular covenant, restriction, or rule with respect to their own conduct or action.  Read the full article

Hosting Virtual Meetings via Zoom

The most asked question of 2020 is this: Can our association host our board and annual meetings using Zoom or another similar virtual/electronic platform? There is no doubt that technology will always advance faster than legislation. In fact, advances in technology seem to take place in light speed whereM as advances in legislation seem to travel at the speed of your average turtle.

As to board meetings, §718.112(2)(b)5 of the Condominium Act provides, “A board or committee member’s participation in a meeting via telephone, real-time videoconferencing, or similar real-time electronic or video communication counts toward a quorum, and such member may vote as if physically present. A speaker must be used so that the conversation of such members may be heard by the board or committee members attending in person as well as by any unit owners present at a meeting.” Note that similar provisions are provided for cooperative associations in… Read the rest in Rembaum’s Association Roundup

Financial Screening of Purchasers: How Far Is Too Far?

A few months back a case came before the county court in the 20th Judicial Circuit for Collier County, wherein a prospective buyer challenged the validity of a board-adopted rule which required that all prospective buyers provide two years of tax returns with their application for ownership approval. This requirement was in addition to the background check and credit check that were also required. While this is only a county court case and, therefore, has no precedential value other than to the parties themselves, there are principles addressed of which associations and managers should be aware; even though many learned attorneys would opine that the conclusions of the court are legally flawed under the facts of the case and, if appealed, would likely be overturned. Nevertheless, there are still nuggets of knowledge that can be gleaned from this case.

In this case, Mech v. Crescent Beach Condominium Association, Inc., Case No. 19-SC-3498, decided June 2020, the purchaser, who was the plaintiff, was seeking to buy a unit at Crescent Beach Condominium for $400,000, which was to be paid in cash. The purchaser purportedly had a clean background and a credit score of 800. Nonetheless, the board required that, like all other prospective purchasers at the condominium, this purchaser needed to produce his tax returns in order for the association to approve the transfer. The purchaser refused to provide his tax returns and cited his good credit score and clean background as evidence enough for approval. Eventually, an impasse was reached, and the purchaser canceled the contract. Then he brought the county court lawsuit challenging the requirement. (Generally speaking, typically under current Florida law, the purchaser would not have legal standing to even bring the claim against the association; but it does not appear that this legal infirmity was raised by the association, which allowed the case to proceed.)

The purchaser challenged the rule, arguing that the rule was not within the scope of the association’s authority to adopt, nor did it reflect reasoned decision-making. (It is noteworthy to point out that, after…

Governing Documents Amendments in Light of Covid-19

Rembaum’s Association Roundup | Governing Documents Amendments in Light of Covid-19: Making Lemonade Out Of Lemons

As a result of the unexpected COVID-19 crisis and its ramifications on Florida’s community associations, there are lessons that can be learned. Early on, an unexpected issue many community associations faced was whether the board could rely on the emergency powers set out in the Florida Statutes to help protect both residents and property alike during this time of uncertainty (the “emergency power legislation”). The Condominium, Cooperative, and Homeowners’ Association Acts each provide that the board of directors is granted certain emergency powers in response to damage caused by an event for which a state of emergency is declared by the Governor. While local governments at the city and county level may similarly declare a state of emergency, the emergency powers only spring into existence upon the Governor’s issuance of an executive order declaring a state of emergency in response damage caused by event.

These emergency powers include, just to name a few, the ability to cancel and reschedule meetings, conduct such meetings with…