Board Members Archives - Kaye Bender Rembaum

June 12, 2025June 12, 2025

Accusations Of Racial Discrimination by the HOA

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

Admittedly there are always two sides to every story. This is why we have the American judicial system to get to the resolution of a matter as decided by the “trier of fact,” be it the judge or jury, after hearing from both the accuser and the accused (or in civil terms, hearing from the plaintiff and defendant). In most civil cases a plaintiff only needs to prove that a particular event was more likely than not to have occurred. This is referred to as a “preponderance of the evidence” standard of proof, meaning that a majority of the evidence favors the plaintiff’s position. But, before the parties can get to that stage, the plaintiff first must sufficiently allege a cause of action against the defendant. If not, then the plaintiff’s lawsuit is subject to being dismissed. Well, that is exactly what happened in the recent federal appellate case of Watts v. Joggers Run Property Owners Association, Inc., 133 F.4th 1032 (11th Cir. 2025), in which the plaintiff, Watts, appealed the dismissal of her case in its entirety by the lower court, the U.S. District Court for the Southern District of Florida.

In the underlying action, Watts alleged Joggers Run of taking unlawful actions against her, her family, and her guests due to their race and brought claims against Joggers Run under both the Fair Housing Act and the Civil Rights Act. Watts accused Joggers Run of selectively enforcing its rules pertaining to parking, pets, yard sales, and penalty fees against her and her family but not against non-Black residents. She accused the association’s president of referring to Black people as “monkeys” and another director of using derogatory, race-based comments. She alleged that she was limited to three minutes when…

Read the full article HERE

May 18, 2025June 12, 2025

Board Member Fiduciary Duties Owed to the Association

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

What is the standard of care that a community association officer and board member owe to their association? The Homeowners’ Association Act (Ch. 720 Fla. Stat.) provides in §720.303, “The officers and directors of an association are subject to §617.0830 and have a fiduciary relationship to the members who are served by the association.” The Condominium Act (Ch. 718 Fla. Stat.) in §718.111 similarly provides, “The officers and directors of the association have a fiduciary relationship to the owners.” Still, though, there is no express definition of the term “fiduciary relationship” set out in either piece of legislation.

With that in mind, let’s take a look at some of the more common definitions of the term “fiduciary,” including the following:

- A fiduciary relationship is a relation between two parties wherein one party (fiduciary) has the duty to act in the best interest of the other party (beneficiary or principal).
- A fiduciary is a person who holds a legal or ethical relationship of trust with one or more other parties. Typically, a fiduciary prudently takes care of money or other assets for another person.
- A fiduciary duty is a relationship in which one party places special trust, confidence, and reliance in and is influenced by another who has a fiduciary duty to act for the benefit of the party.
- Most importantly, and germane to this discussion, a fiduciary is a person or organization that acts on behalf of another person or persons, putting their clients’ interests ahead of their own, with a duty to preserve good faith and trust.

From all of this we can glean that a good community association board member puts the interest of their association well above their own personal interests. Not only are homeowners’ associations subject to Chapter 720, Florida Statutes, and condominium associations subject to Chapter 718, Florida Statutes, but both are subject to Florida’s Not-For-Profit Corporation Act, Chapter 617, Florida Statutes. Section 617.0830, Fla. Stat., provides a mechanism that will shield a director from breach of fiduciary duty claims so long as they follow the requirements set forth in this ever-important piece of legislation.

Section 617.0830, Fla. Stat., provides, …

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November 2, 2024January 7, 2025

What Exactly Does a Former HOA President Bring That’s Worth Paying Him $60 Per Hour?

Posted with permission of HOALeader.com

In this week’s tip, we answer an HOAleader.com reader’s email about their board hiring their former president at $15 per quarter hour. Apparently, the current board says this former president can advise the board because the president knows a lot about the community.

To help our reader out, we’ve broken this down into two parts. Can boards do this? And should boards do this? The short answers are probably “yes” and “not if you can avoid it.”

We asked four experts about this situation, and all agreed that it would likely be legal in their state for a board to hire a former president.

“In Florida, you can hire anybody you want to perform any service you want,” says Lisa Magill, of counsel based in Pompano Beach, Fla., Kaye, Bender & Rembaum. “Obviously, that doesn’t include services that must be performed by those with a license, such as a community manager.” [Read the rest here]

September 11, 2019October 31, 2019

REMBAUM’S ASSOCIATION ROUNDUP: NEW RULES FOR FHA FINANCING – WHAT BOARD MEMBERS NEED TO KNOW

For some home buyers, financing the purchase of their new home can be a barrier to entry. Many home buyers need the benefit of an FHA backed loan for their lower interest rates. The Federal Housing Authority (FHA), a part of the Department of Housing and Urban Development (HUD), has provided mortgage insurance on loans made by FHA-approved lenders since its inception in 1934. Until a recent FHA rule change, any buyer interested in purchasing a condominium unit backed by an FHA loan faced the additional hurdle requiring that the condominium project itself must be FHA approved.

The FHA approval process for condominium projects can be complex and time-consuming. Prior to the recent FHA rule change, if the condominium project was not approved by the FHA, then prospective condominium purchasers could only obtain conventional loans, making it more difficult to secure financing. In fact, according to the FHA, only 6.5 percent of the country’s more than 150,000 condominium projects are approved to participate in the FHA’s mortgage insurance program. However, a new FHA rule that goes into effect on October 15, 2019 will change the approval process for condominium units and allow more buyers to receive approval for an FHA loan.

The new rule introduces several changes to the FHA approval process. The most notable is that the FHA will now allow an individual condominium unit owner to be eligible for an FHA backed mortgage even if the condominium project as a whole is not approved. However, the FHA will only approve a limited number of units in any condominium project. For projects with 10 or more units, no more than 10 percent of the individual units can be FHA-insured, and for projects with fewer than 10 units, no more than two individual units can be FHA-insured. Board members, owners, managers, and anyone else can access HUD’s database to find the number of FHA backed loans in a condominium project at https://entp.hud.gov/idapp/html/condo1.cfm.

The following are some of the essential requirements for a condominium project to be FHA approved, which have not been changed by the new rule:

The condominium project must consist of two or more units
No more than ten percent of the units can be owned by one investor or entity in a project with more than 10 units. In a project with 10 or fewer units, an investor may not own more than one unit. Unsold units are not considered investor-owned
No more than fifteen percent of the total unit owners can be in arrears of association fees.

While the FHA allows limited restrictions on leasing, a condominium project will not be approved if the declaration or by-laws require that a prospective tenant be approved by the association. However, the association may require leases to be in writing and subject to the declaration and by-laws of the condominium, request a copy of any sublease and the name of all tenants who will occupy the unit, and establish a maximum allowable lease term and maximum number of rental units within the project. The FHA leasing requirements are the same for condominium and homeowners associations, but the new rule changes apply only to condominium associations.

The new FHA rule requires that approved condominium projects have a minimum of 50 percent of the units occupied by “owners” for most projects. In 2015, the FHA clarified that a condominium unit is considered to be owner-occupied provided that it is not: (i) tenant occupied, (ii) vacant and listed for rent, (iii) vacant and listed for sale, or (iv) under contract to a purchaser who does not intend to occupy the unit as a principal residence or secondary residence. For approved projects, the FHA will insure up to 50 percent of the units in the project.

The new FHA rule has extended the allowable amount of commercial/non-residential space for an approved condominium from 25 percent to 35 percent of total floor space. It also extended the re-certification deadline for approved condominium projects from two years to three years. An approved condominium project may request renewal of its approval by submitting a request no earlier than six months prior to the expiration or no later than 6 months after expiration of the approval.

Getting your condominium project approved by the FHA allows more buyers the opportunity to purchase units in your community utilizing FHA backed loans. However, the approval process is complex, and may require that your declaration and by-laws be amended to conform with FHA requirements – most especially in regard to leasing. Each association will have to balance the benefit of FHA backed loans versus having lease approval powers. If an owner’s neighboring tenant turns out to be previously convicted of rape, murder, or other heinous crime, then there is a great probability that such owner would have preferred stringent lease approval requirements as compared against providing for FHA backed loans in the community. Your association’s legal counsel can be of great benefit in navigating issues concerning the FHA approval process.