REMBAUM'S ASSOCIATION ROUNDUP | The Community Association Legal News You Can Use

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Tag: rules

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Important Information for New and Existing Board Members

EDUCATION REQUIREMENTS

As election season will soon be at hand, it is always a good idea to review both initial certification and continuing board member education requirements. There are significant differences as related to condominium board members as compared to homeowner association board members for both the board certification class and the continuing education requirements, as you can see in the chart below.

Throughout the year Kaye Bender Rembaum P.L. offers free board member certification courses as well as continuing education courses for all attendees on a rotating schedule so that you can enjoy one or more of them from the privacy of your own home. To view the calendar, use your browser to visit KBRLegal.com.

RULES and POLICIES EVERY BOARD SHOULD CONSIDER ADOPTING

If you wait until you actually need any of the types of rules and policies discussed below, then in all likelihood you have waited too long. The purpose of adopting the rules and policies discussed below is to provide for the orderly operation of your association so that your day-to-day activities are not encumbered by one or more cantankerous association members whose sole purpose is to wreak havoc upon the board.

A. OFFICIAL RECORD REQUESTS RULES

The board should consider adopting rules regarding official record requests and where and how such requests must be sent. Absent that, a member could send an email or scribble their request on a napkin and give it to a board member triggering the statutory timeline for a response, which can lead to financial penalties for failure to timely make the requested records available for inspection and copying. Such rules can also take into account the permitted frequency of official record requests from a member as well as maximum time to perform such inspections.

Condominium associations should also consider adopting similar rules regarding written inquiries received from an owner via certified mail as failure to properly respond can lead to the association not being able to collect attorneys’ fees and costs in the event of later litigation that was the subject matter of the written inquiry received via certified mail. Such rules can also take into account that each subpart of a question counts as a separate individual question, thereby providing for a total number of questions, including all subparts, to not exceed 20 in total.

B. BOARD AND MEMBERSHIP MEETING DECORUM RULES

These rules can assist business being conducted in an orderly fashion at meetings and can include, without limitation, when the members have the right to speak, a time limit for owner statements (such as three minutes), and other important conduct provisions. Failure to follow such rules leads to the member being excused from the meeting, pending the circumstances. In addition, these rules can also provide for board member decorum as well.

C. ADOPTION OF A COLLECTIONS POLICY

Essentially, having a standardized collections policy ensures that not only are all owners treated similarly in regard to a delinquency, but also it provides for timely and standardized procedures. Such a policy can provide for such things as sending a reminder letter when an owner is a certain number of days past due (such as 15 days), followed by a continuing instruction to management to send the notice of late assessment if the debt is not paid within 30 days of the first letter. If the owner still has not satisfied their delinquency prior to the expiration of the 30 days of the notice of late assessment, then management is instructed to turn the matter over to the association’s attorney to begin collection/foreclosure proceedings, which are so authorized by the collections policy. Such a policy would also include the appropriate interest rate and late fees to be charged in accordance with the association’s governing documents. 

As a reminder, the Florida legislature enacted requirements not too long ago that the association provide one final 30-day notice to a delinquent member before commencing collection and foreclosure activities. This is referred to as a notice of late assessment (NOLA). Upon request the association’s attorney can prepare detailed instructions and provide draft forms so as to ensure statutory compliance.

COLLECTION and FORECLOSURE ACTIVITIES

Your board is reviewing delinquencies and discovers that certain members are very delinquent with their payment of assessments. The manager is instructed to turn those files over to the association’s law firm to begin collection-related activities. Because the burden of proof is on the association to prove the debtor is delinquent, all supporting information regarding the delinquency should be part of the turnover file given to the attorney, which includes providing the “basis” or “backup,” if you will, to substantiate the monies due to the association. Therefore, typically the association needs to provide the following documentation to its attorney as a part of the collection turnover package to commence collection related activities:

      1. A copy of the debtor’s ledger that goes back to the last zero balance (in other words, the ledger showing the last time the owner was not delinquent).
      2. A copy of the notice of late assessment as required by Florida law (and the affidavit of mailing, if available).
      3. If a special assessment is included on the ledger, then a copy of the meeting notice that was posted and mailed to all of the members at least 14 days in advance, the resulting meeting minutes and the notice that was sent to the membership advising that the special assessment was adopted/passed, and the due dates.
      4. If a fine is included on the ledger, and the declaration permits fines to be converted into an assessment, then all of the backup paperwork must be provided, which would include the notice of board meeting where the fine was considered, a copy of the correspondence sent to the owner at least 14 days prior to the fining committee meeting, the minutes resulting from the fining committee hearing, and a copy of the correspondence sent to the owner thereafter advising them as to the debt owed. In addition, depending on the exact language in the declaration, it may be necessary for the board to actually take official action to convert the fine into an assessment (please note that a fine can only potentially be converted into an assessment for a homeowners’ association governed by Chapter 720, F.S.). It is not always automatic, even if the language might lead the ordinary reader to believe as much, and at times it is still necessary to convert the fine into an actual assessment. With that in mind, it is always a good idea to discuss whether your declaration permits the fine to automatically be treated as an assessment, or if other action is required by the board to do so. And remember, unless the declaration provides the authority for the fine to be treated as an assessment, then it cannot be collected as an assessment. Rather, the association would have to resort to other collection means such as small claims court to collect the fine.

The association’s attorney will be a tremendous resource to the board and will play an integral role with assisting the board in conforming all of the above-discussed rules and regulations and policies to your association.

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Age-Based Restrictions – Regulating the Use of Recreational Facilities by Children

The Fair Housing Act, Title VIII of the Civil Rights Act of 1968 (which has been amended and expanded over the years), prohibits discrimination in housing on the basis of race, color, national origin, religion, sex, familial status, and disability. There are also various state and local regulations that address housing discrimination. While most community associations are aware of and avoid discriminatory housing practices for most protected classes, some community associations struggle with balancing how to steer clear of discrimination on the basis of “familial status” while still addressing common concerns and issues that children can create in a community. The first part of this article addresses communities that are NOT Housing for Older Persons (meaning not 55 and older) communities while 55 years of age and older communities are addressed toward the end.

Discrimination on the basis of “familial status” includes discrimination against children under the age of 18 living with parents or legal custodians, pregnant women, and people securing custody of children under the age of 18. In addition to prohibiting familial status discrimination as to occupancy of a dwelling, the Fair Housing Act’s familial status discrimination prohibition extends to the use of the association’s recreational facilities, including for example, the community clubhouse, swimming pool, hot tub, and fitness center.

NOT 55 AND OVER COMMUNITIES

In United States of America v. Plaza Mobile Estates, et al., 273 F. Supp. 2d 1084 (U.S.D.C. 2003), the court held that several association rules which prohibited or restricted the use of recreational facilities, including the clubhouse, billiard room, tennis courts, laundry room, swimming pool, sauna, jacuzzi, and sun deck, by children were discriminatory and violated the Fair Housing Act because they treated children, and thus families with children, differently and less favorably than adult-only households. These rules included prohibiting residents under the age of 14 from using the recreation facilities without the accompaniment of an adult resident, prohibiting entry into the billiard room by anyone under the age of 18, requiring that anyone under 14 years of age riding a bicycle be accompanied by a responsible adult, and requiring guests under 18 years of age be accompanied by a responsible adult. A similar conclusion was reached by the court in Iniestra v. Cliff Warren Investments, Inc., 886 F.Supp.2d 1161 (C.D.Cal.2012), in which it found that the following four association policies were facially discriminatory: (i) prohibiting children under the age of 18 from being in the pool or pool area at any time unless accompanied by their parents or legal guardian; (ii) requiring children on the premises to be supervised by a responsible adult at all times; (iii) requiring children under seven to be supervised; and (iv) requiring adult supervision for children under 10 years old.

Therefore, it is clear that community associations should avoid adopting rules and regulations which unreasonably prohibit or restrict the use of their recreational facilities or other common areas on the basis of age. The above cases provide insight as to what may be considered unreasonable. However, these cases do not completely eviscerate the authority of a community association to adopt reasonable rules and regulations governing the use of its recreational facilities and other common areas. This merely requires the community association to alter its perspective on the rules and regulations being adopted. Instead of focusing only on the age of the individual, focus on the underlying activity that the community association would like to regulate or prohibit. For example, if the concern is the safety of children at the community swimming pool, the community association could consider adopting a rule requiring that anyone who is not a competent swimmer be supervised by a competent swimmer at all times while in the pool and pool area.

If the association is going to prohibit use of amenities and such based on age alone, consider including a mechanism for relief from the rule within the rule itself. For example, what if the association has a rule, “No children under the age of 12 may be in the pool without adult supervision”? What if an 11-year-old is already a proficient swimmer and is on a swim team? Therefore, consider adding to the rule that “if an exception to the rule is necessary, please make application to the board to do so.” In other words, do not make the rule inflexible, but rather provide exceptions to the rule under the right circumstances.

Although the Fair Housing Act prohibits discrimination in housing on the basis of familial status, there is an exception to this prohibition under the federal Housing for Older Persons Act adopted in 1995 (“HOPA”). Under the HOPA, housing providers, including community associations, are exempt from liability for familial status discrimination so long as certain requirements are met and maintained. Although there are three types of housing for older persons’ exemptions, the most common exemption is housing intended and operated for occupancy by persons 55 years of age or older, which enables the association to prohibit persons under the age of 18 from being permanent residents.

55 AND OVER COMMUNITIES

To qualify as “housing for older persons” (often called “55+ housing”), a community association must meet the following criteria: (i) ensure that at least 80 percent  of the homes have at least one permanent resident who is 55 years of age or older; (ii) publish and adhere to policies and procedures that demonstrate an intent to provide housing for older persons (55+); and (iii) conduct a census/survey every two years to obtain reliable age documentation of the residents to verify the occupancy of the homes.

If a community association is properly maintained as “housing for older persons,” then the community association may adopt age-based restrictions concerning the use of its recreational facilities and other common areas because it is exempt from enforcement of familial status housing discrimination. For example, a community association that qualifies as housing for older persons may limit children’s use of the community swimming pool to certain days or times and may require an adult to accompany children while in the clubhouse or prohibit children from using the community fitness center. As a result of the HOPA exemption, a community association that qualifies as housing for older persons may adopt age-based restrictions which community associations for all ages are prohibited from promulgating. Of course, no community association is exempt from the laws that prohibit discrimination based on any other protected class, such as race, religion, national origin, disability, etc.

While community associations that qualify as housing for older persons are exempt from the Federal Fair Housing Act’s provisions regarding familial status, these community associations must also be mindful of local laws and ordinances that may also prohibit discrimination based on age before adopting age-based restrictions. For example, the fair housing laws of Palm Beach County provide that “[h]ousing for older persons may also maintain only those age restrictions necessary in order to be designated as housing for older persons.” Therefore, a community association should contact its attorney before establishing rules, regulations, or restrictions based on age.