HOA BOARD MEMBER CERTIFICATION. Effective July 1, 2013, within 90 days of taking office, all HOA board members are required to become “certified” by either taking an approved HOA Board Member Certification Course or by certifying in writing that the board member has read the association’s declaration of covenants, articles of incorporation, bylaws, and current written rules and policies; that he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.
To meet this new requirement, Attorney Jeffrey Rembaum, of Kaye Bender Rembaum, Attorneys At Law, will be presenting three (3) FREE HOA Board Member Certification Courses, generously sponsored by FirstService Residential (formerly, The Continental Group). These FREE courses will be held on August 13 and 27, from 12:30 PM to 2:30 PM and August 20, from 7:00 PM to 9:00 PM at the South County Civic Center located at 16700 Jog Road, Delray Beach. To reserve your seat(s), contact Janeal Aponte at 561-989-5064 or Janeal.aponte@fsresidential.com.
In addition, Kaye Bender Rembaum, Attorneys At Law, is offering the following FREE HOA Board Member Certification Courses from 6:30 PM to 8:30 PM on August 27, September 24, and October 29 in the Firm’s beautiful Pompano Beach office located at 1200 Park Central Boulevard, South. To reserve your seat(s), contact Odalis Milanes at 954-928-0680 or Odalis@KBRLegal.com.
A MEMBER’S RIGHT TO SPEAK. At members meetings, all HOA members have the right to speak for at least three (3) minutes on all items open for discussion or included in the agenda without regard to any provision to the contrary in the governing documents or rules adopted by the board or membership. Similarly, at board meetings, all HOA members also have the right to speak on all items open for discussion or included in the agenda, however, the law does not provide for the same minimum three (3) minutes. In both instances, the board can adopt reasonable rules regarding frequency, duration, and other manner of member statements. Every board should consider doing so. As compared to condominium associations, a condominium association member has the right to speak only with reference to all “designated agenda items” at both member meetings and board meetings. Similarly with HOAs, a condominium association may adopt written reasonable rules governing the frequency, duration and manner of member statements. In the condominium context, there are no statutory time limitations imposed on member statements.
ELECTION CHALLENGES & RECALLS. Any challenge to a condominium or homeowners’ association election process must be commenced within sixty (60) days after the election results are announced. Recall attempts cannot be conducted until at least sixty (60) days after the election and not within the sixty (60) day period prior to the subsequent election.
A NEW TAX LOOMS OVERHEAD (A/K/A THE BOSTON TEA PARTY, CONTINUED). You likely already know that the Division of Florida Condominiums, Timeshares and Mobile Homes (the “Division”) requires condominium associations to pay a fee (aka, a tax) of approximately $4.00 per unit, per year. The revenue is used to offset the Division’s operating costs and programs. But, did you also know that the Florida Legislature diverts the lion’s share of this collected revenue for other expenditures not all related to the Division’s needs by commingling the revenues into the State’s general coffers?
Apparently, the Legislature is considering reaching even deeper into your wallet. By November 22, 2013, every HOA is required to inform the Division of, amongst other things, the total number of parcels and total amount of revenues and expenses from the association’s annual budget. The collected information is to be presented to the Governor, the President of the Senate, and the Speaker of the House of Representatives by December 1, 2013, and each year thereafter. For what other reason could such information be required, if not to consider additional taxes? Perhaps we should all meet by the intracoastal waterway, tea in hand…
NEW HOA OFFICER AND DIRECTOR CONFLICT OF INTEREST LAWS. If the association enters into a contract or other transaction with any of its directors or other entity in which an association director is also a director or officer or is financially interested (except in other community associations), the board member (1) must disclose the facts of the relationship, (2) such facts must be entered into the minutes, (3) an affirmative vote of two-thirds of the directors present is required to approve the contract (minus the vote of the interested/conflicted director), and (4) the contract or transaction must be fair and reasonable. In addition, at the next regular or special meeting of the members, the existence of the contract (or transaction) must be disclosed to the membership. Upon motion of any member, the contract or transaction shall be brought up for a vote and may be canceled by a majority vote of the members present. If the members cancel the contract, the association is only liable for the reasonable value of goods and services provided up to the time of cancellation and is not liable for any termination fee, liquidated damages, or other penalty.
A HOA director or officer charged by information or indictment with a felony theft or embezzlement offense involving the association’s funds or property is removed from office, and the board must fill the vacancy. However, if the charges are resolved without a finding of guilt or without acceptance of a plea of guilty or nolo contendere, the director or officer must be reinstated. A HOA member who has such criminal charges pending may not be appointed or elected to a position as a director or officer.
A HOA is required to maintain insurance or a fidelity bond for all persons who control or disburse funds of the association. If annually approved by a majority of the voting interests present at a properly called meeting of the association, the association may waive the requirement of obtaining an insurance policy or fidelity bond for all persons who control or disburse funds of the association. Why would members vote to do that?
The board must immediately remove an officer or director from office if the board finds that such person solicited, offered to accept, or accepted any good or service of value for which consideration has not been provided for his or her benefit or for the benefit of a member of his or her immediate family from any person providing or proposing to provide goods or services to the association, excluding food to be consumed at a business meeting with a value of less than $25.00 per individual and services or goods received in connection with trade fairs and education programs. It is not clear from a plain reading of this new legislation whether the $25.00 cap is intended to also apply to services or goods received in connection with trade fairs and education programs.