MANAGEMENT & ASSOCIATES PRESENTS 2016 BOARD CERTIFICATION COURSE

Transcription

1 MANAGEMENT & ASSOCIATES PRESENTS 2016 BOARD CERTIFICATION COURSE

2 RISK MANAGEMENT, RESERVES, OPERATIONS OH-MY Comprehensive Board Certification Course

3 FLORIDA STATUTES GOVERNING ASSOCIATIONS Condominium Associations Chapter 718 of the Florida Statutes Homeowner s Associations Chapter 720 of the Florida Statutes Florida Administrative Code Chapters 61B-15 through 25, 45, and 50

4 BOARD POWERS and DUTIES

5 Definition of the Board (4), F.S (3), F.S. The Board of Administration or Board means the representative body which is responsible for administration of the association

6 Fiduciary Relationship (1)(a), F.S (1), F.S. In both Condominiums and HOA s, the officers and directors have a fiduciary relationship to the unit owners. This means that the officers and directors must keep the interests of the association above their personal interests, and; They shall discharge their duties in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner they reasonably believe to be in the best interest of the association.

7 Association Powers and Duties (2),F.S ,F.S. The association powers and duties include those spelled out in the laws governing corporations, within the governing documents of the association and this is in addition to powers and duties provided in the Condominium Act.

8 Association Powers and Duties continued. The association may enter into contracts, may sue, or be sued with respect to the exercise or non-exercise of its powers. The association may institute, settle or appeal actions or hearings in its name on behalf of all unit owners concerning matters of common interest to most or all unit owners.

9 Association Powers and Duties continued The association has the power to Make and collect assessments Lease common elements Maintain common elements Repair/Replace common elements or association property

10 Association Powers and Duties continued The Association has the power to acquire title to property: Real property Personal property for the use and/or benefit of the members.

11 Budgets and Reserves

12 Budget (2)(f), F.S (6)(a), F.S. The association must prepare an annual budget which shows the revenues and expenses for the upcoming year. The budget is a map that will guide the board in making decisions during the course of the year. It is the board s formal written plan of the association s estimated future revenues and expenses Both the proposed and adopted budgets must be maintained in the official records, along with an affidavit that the budget meeting notice and proposed budget have been mailed to unit owners.

13 Budget Meeting (2)(e)(f), F.S (2)(2), F.S. & 61B-22,003(1), F.A.C. Notices: Must be mailed, delivered or electronically transmitted not less than 14 days prior to the meeting. Condominiums: Proposed budget; must be included with the notice, and reserves must include the reserve analysis and shown as fully funded in the proposed budget. Unless documents call for unit owners to adopt the budget, the board must adopt a budget with fully funded reserves, (unless reserves have been properly waived or reduced by unit owners).

14 Budget Meeting (2)(e)(f), F.S (2)(2), F.S. & 61B-22,003(1), F.A.C It is not required for a proposed budget to be included with the notice of the budget meeting for a homeowner s association. The board adopts the budget whether reserves are fully funded or not.

15 Operating Budget Requirements (2)(f)1, and (21), F.S (6)(a)(b)&, F.S. Budgets must include estimated revenues and expenses. Revenues must include, if applicable: Assessments Interest Insurance proceeds Any other form of income

16 Operating Budget Requirements (2)(f)1, and (21), F.S (6)(a)(b)&, F.S. continued.. Expenses must include: Annual Condominium Fees paid to the State (Condominiums only) Insurance/Fidelity bonding If applicable: Administrative Expenses Management fees Maintenance Rent for recreation and other commonly used facilities Taxes upon association property Taxes upon leased areas Security provisions Professional fees

17 Operating Budget Requirements (2)(f)1, and (21), F.S (6)(a)(b)&, F.S. continued.. Any other expenses that the board knows will occur in the new budget year but may or may not be reoccurring. For example a termite treatment which is not the same as the yearly inspection charge.

18 Other Required Information 61b (1), F.A.C. Beginning and ending dates for the period covered by the budget Total expenses, including reserves on at least an annual basis Assessments per unit according to the proportion of ownership

19 The 115% Rule Chapter (2)(e)2.,F.S. provides, If assessments are greater than 115% of the previous year s assessments, unit owners MAY be entitled to consider an alternative budget. For Homeowner s Association you must apply what is written in the Association s governing documents.

20 Reserves 61B (2),(3),(5), F.A.C (6)(c)(d)(e)(f) and (g) Capital Expenditures Purchase or replacement of an asset with life of more than one year, or addition to existing asset to extend its life more than one year. Deferred Maintenance Any maintenance or repair that will be performed less frequently than yearly and will result in maintaining the useful life of an asset. Reserves Any funds other than operating funds, which are restricted for deferred maintenance and capital expenditures, including the items required by the Condominium Act, and any other funds restricted as to use by the condominium documents or the condominium association, Chapter 720 of the Florida Statutes, and any Homeowner s Association governing documents.

21 Requirements Regarding Reserves (2)(f)2., F.S (6)(2)(d), F.S. In a condominium your reserves must include: Roof replacement Building painting Pavement resurfacing and Any other item of deferred maintenance or capital expenditure exceeding $10, which may include retrofitting of fire sprinklers

22 Requirements Regarding Reserves (2)(f)2., F.S (6)(2)(d), F.S. continued.. Homeowner s Associations provide, An association is deemed to have provided for reserve accounts if reserve accounts have been initially established by the developer or if the membership of the association affirmatively elects to provide for reserves. If reserve accounts are established by the developer, the budget must designate the components for which the reserve accounts may be used. If reserve accounts are not initially provided by the developer, the membership of the association may elect to do so upon the affirmative approval of a majority of the total voting interests of the association.

23 Requirements Regarding Reserves (2)(f)2., F.S (6)(2)(d), F.S. continued.. Proposed budgets must include fully funding reserves. Reserve schedule must be included with proposed budgets. This may not apply to a homeowner s association as the developer may not have established reserves for the association.

24 Reserve Calculations 61B (3), F.A.C. Items needed in order to calculate reserves Total estimated life Remaining estimated life (#years) Anticipated replacement/deferred maintenance cost Anticipated beginning balance in reserve fund Note: Projected cost may be determined by incorporating a calculation for expected interest and inflation

25 Straight Line Method Formula The formula for using the straight line method is: Anticipated replacement/deferred maintenance cost LESS anticipated beginning balance in reserve fund = Remaining reserves needed Remaining reserves needed divided by remaining life (#years) = the amount needed in the current year to fully fund.

26 Pooled Reserves Defined The association may have a single source of funds to pay for multiple categories of reserve expenses. For example, if an association establishes a pooled reserve account for roof replacement, building painting and pavement resurfacing funds may be drawn from this account to pay for any of the three items. Note: A membership vote is required in order to go from component funding to pooling. Prior to the change in the rules associations were required to maintain separate accounts for each of these items and approval from the membership would be required in order to use funds from one category to pay for another.

27 Pooled Method Formula The amount of the contribution to the pooled reserve account shall not be less than that required to ensure that the balance on hand at the beginning of the period for which the budget will go into effect, plus the projected annual cash inflows over the remaining estimated useful lives of all of the assets that make up the reserve pool is = or > the projected annual cash outflows over the remaining estimated useful lives of all of the assets that make up the reserve pool, based on the current reserve analysis.

28 Pooled Method Formula continued The ending reserve fund balance must never go below zero The reserve funding formula shall not include any type of balloon payments Reserve funding must be calculated out over the remaining useful life of the asset with the longest useful life

29 Interest (2)(f)3., F.S (6)(g)(1)(b), F.S. Must remain in reserve accounts Association may establish policy regarding allocation of interest among reserve accounts

30 Commingling (2)(e)(3), F.S (8), F.S. 61B-22005(2), F.A.C. The portion of periodic assessments that are for reserves must be deposited in the reserve account in no more than 30 days of receipt

31 Other Reserves The formula used need not be the statutory formula Shall show the reserve calculation in a separate reserve section of the budget. Other reserves could be: Insurance Deductible Hurricane Cleanup Capital Expenditures/Deferred Maintenance Drainage/Plumbing

32 Waiving Reserves or Providing Reserves less than Fully Funding (2)(f)2., F.S (6)(c), F.S. May be accomplished at a duly called unit owner s meeting (Condominiums) May be accomplished at a duly called Board meeting wherein all unit owner s were noticed (HOA) Vote required is a majority of those present or voting by limited proxy at the meeting, (assuming the quorum requirement is met; Condominium) A Board vote is the only vote required (assuming there is a quorum of the Board present; HOA) Vote only applies to one fiscal year

33 Use of Limited Proxy (2)(f)4.F.S. The limited proxy for waiving of reserves must contain the following in bold letters in a font larger than any other used on the fact of the proxy ballot: WAIVING OF RESERVES IN WHOLE OR IN PART, OR ALLOWING ALTERNATIVE USES OF EXISTING RESERVES MAY RESULT IN UNIT OWNER LIABILITY FOR PAYMENT OF UNANTICIPATED SPECIAL ASSESSMENTS REGARDING THOSE ITEMS

34 Waiving Reserves in Whole or Partially (6), F.S. If the budget of the association does not provide for reserve accounts pursuant to paragraph (d) and the association is responsible for the repair and maintenance of capital improvements that may result in a special assessment if reserves are not provided, each financial report for the preceding fiscal year required by subsection (7) must contain the following statement in conspicuous type: THE BUDGET OF THE ASSOCIATION DOES NOT PROVIDE FOR RESERVE ACCOUNTS FOR CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE THAT MAY RESULT IN SPECIAL ASSESSMENTS. OWNERS MAY ELECT TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO SECTION (6), FLORIDA STATUTES, UPON OBTAINING THE APPROVAL OF A MAJORITY OF THE TOTAL VOTING INTERESTS OF THE ASSOCIATION BY VOTE OF THE MEMBERS AT A MEETING OR BY WRITTEN CONSENT. If the budget of the association does provide for funding accounts for deferred expenditures, including, but not limited to, funds for capital expenditures and deferred maintenance, but such accounts are not created or established pursuant to paragraph (d), each financial report for the preceding fiscal year required under subsection (7) must also contain the following statement in conspicuous type: THE BUDGET OF THE ASSOCIATION PROVIDES FOR LIMITED VOLUNTARY DEFERRED EXPENDITURE ACCOUNTS, INCLUDING CAPITAL EXPENDITURES AND DEFERRED MAINTENANCE, SUBJECT TO LIMITS ON FUNDING CONTAINED IN OUR GOVERNING DOCUMENTS. BECAUSE THE OWNERS HAVE NOT ELECTED TO PROVIDE FOR RESERVE ACCOUNTS PURSUANT TO SECTION (6), FLORIDA STATUTES, THESE FUNDS ARE NOT SUBJECT TO THE RESTRICTIONS ON USE OF SUCH FUNDS SET FORTH IN THAT STATUTE, NOR ARE RESERVES CALCULATED IN ACCORDANCE WITH THAT STATUTE.

35 Financial Reporting

36 Year-end Financial Reporting (13), F.S (7), F.S. The Condominium Act and Chapter 720 of the Florida Statutes requires that every Condominium Association and every Homeowner s Association to prepare a yearend summary of the financial activities and financial position of the association

37 Year-end Financial Reporting (13), F.S (7), F.S. continued.. The report covers the association s prior fiscal year. Due 90 days after the end of the fiscal year or annually on a date provided in the bylaws. No later than 120 days after the end of the fiscal year or other date as provided in the bylaws, the association shall mail to each unit owner or hand deliver to each unit owner, a copy of the financial report or a notice that a copy of the financial report will be mailed or hand delivered to the unit owner, without charge, upon receipt of a written request from the unit owner.

38 Types of Financial Reports There are 2 types of Financial Reports. Report of Cash Receipts and Disbursements Financial Statements 3 levels: Compiled Financial Statements Reviewed Financial Statements Audited Financial Statements

39 Who Prepares What? Reports of Cash Receipts and Disbursements Associations comprised of fewer than 50 units or less than $150, in annual revenues. Financial Statements Associations comprised of 50 or more units AND $150, or more annual revenues and associations whose documents require financial statements.

40 Report of Cash Receipts and Disbursements This is a report of the prior years financial activities prepared on a cash basis Cash basis Reporting of receipts and expenditures as they actually occurred. This is similar to your check book, in that it shows cash coming in, (deposits) and cash going out (expenses).

41 Financial Statements This is a report of the prior years financial activities prepared on the accrual basis using fund accounting in accordance with generally accepted accounting principles, (GAAP). Accrual basis Reporting of receipts and expenditures as they were earned or obligated GAAP Financial accounting and reporting assumptions, standards, and practices that a business firm must use in preparing external financial statements.

42 Financial Statements There are three levels of financial statements. They are as follows: Audit 50 or more units and annual revenues of $500, or more Review 50 or more units and annual revenues of $300, or more but less than $500,000 Compilation 50 or more units and annual revenues of $150,000 or more, but less than $300,000.00

43 Financial Statements Audited and Reviewed Financial Statements must be performed by an independent Florida Licensed CPA Compiled Financial Statements do not have to be prepared by a CPA.

44 Providing a Lower Level of Year-end Report Majority vote of the voting interests present or by limited proxy at a duly called meeting of the association. Must be taken before the end of the fiscal year Applies to the current fiscal year, except the approval may also be effective for the following fiscal year.

45 Providing a Lower Level of Year-end Report (13)(d)3., F.S (7), F.S. In a condominium financial reporting may not be waived for more than 3 consecutive years In a condominium the developer may cast his/her votes only for the first 2 fiscal years For both HOA s and Condos any audit or review prepared prior to turnover of the control of the association shall be paid for by the developer For both HOA s and Condos: AN ASSOCIATION CANNOT WAIVE THE REQUIREMENT TO PREPARE THE YEAR-END FINANCIAL REPORT

46 INSURANCE In a condominium (11), F.S. provides that the association shall use it s best effort to obtain and maintain insurance to protect the association, the association property, the common elements and the condominium property that is required to be insured by the association. The association may also obtain and maintain liability insurance for directors and officers, insurance for the benefit of association employees, and flood insurance for common elements, association property and units.

47 Insurance, continued In a condominium (11), F.S. provides that the association shall obtain and maintain insurance or fidelity bonding to cover the following The president, secretary, treasurer and all persons who control or disburse funds of the association The policy or bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time.

48 Insurance Continued (11)(j) If damage is not covered by the association s insurance carrier because it is not an insurable event, the obligation to repair or replace the damaged items is determined by reviewing the governing documents.

49 Insurance Continued Condos Only: Abandoned Units (5) The association can enter an abandoned unit to inspect and make repairs to the unit and/or common elements, address mold or deterioration, turn on the power to the unit. There are specific steps to follow to determine that the unit is abandoned

50 Insurance continued.. In a Homeowner s Association (3) provides, The association shall maintain insurance or a fidelity bond for all persons who control or disburse funds of the association. The insurance policy or fidelity bond must cover the maximum funds that will be in the custody of the association or its management agent at any one time. As used in this subsection, the term persons who control or disburse funds of the association includes, but is not limited to, persons authorized to sign checks on behalf of the association, and the president, secretary, and treasurer of the association. The association shall bear the cost of any insurance or bond. If annually approved by a majority of the voting interests present at a properly called meeting of the association, an association may waive the requirement of obtaining an insurance policy or fidelity bond for all persons who control or disburse funds of the association.

51 Commingling of Association Funds (14), F.S (8), F.S. In both Condominiums and Homeowner s Associations the Board SHALL NOT commingle association funds with: Any officer s or director s private funds Any manager s or employee s private funds Any other association s funds. However, the Board MAY commingle operating and reserve funds for investment purposes only. The funds must be accounted for separately and the account balance cannot go below the amount required for reserves

52 Commingling of Association Funds (14), F.S (8), F.S. continues Homeowner s Association specifically provides, All association funds held by a developer shall be maintained separately in the association s name. Reserve and operating funds of the association shall not be commingled prior to turnover except the association may jointly invest reserve funds; however, such jointly invested funds must be accounted for separately. No developer in control of a homeowners association shall commingle any association funds with his or her funds or with the funds of any other homeowners association or community association. Association funds may not be used by a developer to defend a civil or criminal action, administrative proceeding, or arbitration proceeding that has been filed against the developer or directors appointed to the association board by the developer, even when the subject of the action or proceeding concerns the operation of the developer-controlled association.

53 Reporting Requirements HOA s Only (13), F.S. The community association manager or management firm, or the association when there is no community association manager or management firm, shall report to the division by November 22, 2013, in a manner and form prescribed by the division. (a) The report shall include the association s: 1. Legal name. 2. Federal employer identification number. 3. Mailing and physical addresses. 4. Total number of parcels. 5. Total amount of revenues and expenses from the association s annual budget.

54 Reporting Requirements HOA s Only (13), F.S. continued.. (b) For associations in which control of the association has not been transitioned to non-developer members, as set forth in s , the report shall also include the developer s: 1. Legal name. 2. Mailing address. 3. Total number of parcels owned on the date of reporting. (c) The reporting requirement provided in this subsection shall be a continuing obligation on each association until the required information is reported to the division.

55 Reporting Requirements HOA s Only (13), F.S. continued.. (d) By October 1, 2013, the department shall establish and implement a registration system through an Internet website that provides for the reporting requirements of paragraphs (a) and (b). (e) The department shall prepare an annual report of the data reported pursuant to this subsection and present it to the Governor, the President of the Senate, and the Speaker of the House of Representatives by December 1, 2013, and each year thereafter. (f) The division shall adopt rules pursuant to ss (1) and to implement the provisions of this subsection. (g) This subsection shall expire on July 1, 2016, unless reenacted by the Legislature.

56 Respond to Unit Owner Letters of Inquiry Condominiums Only (2)(a)2, F.S. For inquiries sent certified mail: A written response is required within 30 days of receipt If response needs a legal opinion, the Board has 60 days to provide substantive written response If advice requested from Division the Board has 10 days from receipt of advice to provide substantive written response

57 Amendment of Bylaws Condominiums (2)(h), F.S. If bylaws do not provide a method of amendment, amending takes approval of two-thirds of the voting interests No bylaw shall be revised or amended by reference to its title or number only Proposals to amend existing bylaws shall contain the full test of the bylaws to be amended: new words shall be inserted and the text underlined, and words to be deleted shall be lined through with hyphens However, if the proposed change is so extensive that this procedure would hinder rather than assist, the understanding of the proposed amendment, a notation must be inserted immediately proceeding the proposed amendment in substantially the following language: Substantial rewording of bylaw. See bylaw for present text.

58 Amendment of Bylaws Homeowner s Associations , F.S (1)(b)(c), F.S. Chapter 617 of the Florida Statutes, which governs not-for-profit corporations provides, Bylaws. The initial bylaws of a corporation shall be adopted by its board of directors. The power to alter, amend, or repeal the bylaws or adopt new bylaws shall be vested in the board of directors unless otherwise provided in the articles of incorporation or the bylaws. The bylaws may contain any provision for the regulation and management of the affairs of the corporation not inconsistent with law or the articles of incorporation. Chapter (1)(b)(c) provides, Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association. Within 30 days after recording an amendment to the governing documents, the association shall provide copies of the amendment to the members. Unless otherwise provided in the governing documents as originally recorded or permitted by this chapter or chapter 617, an amendment may not materially and adversely alter the proportionate voting interest appurtenant to a parcel or increase the proportion or percentage by which a parcel shares in the common expenses of the association unless the record parcel owner and all record owners of liens on the parcels join in the execution of the amendment. For purposes of this section, a change in quorum requirements is not an alteration of voting interests. The merger or consolidation of one or more associations under a plan of merger or consolidation under chapter 607 or chapter 617 shall not be considered a material or adverse alteration of the proportionate voting interest appurtenant to a parcel.

59 Provide a Certificate Signed by an Officer or Agent of the Association Estoppel Letter (8), F.S , F.S. Within 15 days after receiving written request from a unit owner, purchaser, or mortgagee the Board must provide a certificate that states all assessments and other monies owed to the association by the unit owner with respect to the condominium parcel.

60 Fining (2)HOA (3)(a)(b) (2) The association may levy reasonable fines. A fine may not exceed $100 per violation against any member or any member s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association unless otherwise provided in the governing documents. A fine may be levied by the board for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to reasonable attorney fees and costs from the non-prevailing party as determined by the court. (b) A fine or suspension may not be imposed by the board of administration without at least 14 days notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed. The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board. If the board of administration imposes a fine or suspension, the association must provide written notice of such fine or suspension by mail or hand delivery to the parcel owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner.

61 Fining (2)HOA (3)(a)(b) Continued (3) The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may not become a lien against a unit. A fine may be levied by the board on the basis of each day of a continuing violation, with a single notice and opportunity for hearing before a committee as provided in paragraph (b). However, the fine may not exceed $100 per violation, or $1,000 in the aggregate. (a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. This paragraph does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators. (b) A fine or suspension levied by the board of administration may not be imposed unless the board first provides at least 14 days written notice and an opportunity for a hearing to the unit owner and, if applicable, its occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member s household. The role of the committee is limited to determining whether to confirm or reject the fine or suspension levied by the board. If the committee does not agree, the fine or suspension may not be imposed.

62 OBTAIN COMPETITIVE BIDS (1), F.S (2) F.S. In a condominium the association must obtain at least two competitive bids for contracts for items, services, or work that will exceed 5% of the annual budget, including reserves. This doe not apply to contracts for the following: Employees of the association Attorneys Accountants Architects Community Association Managers Timeshare Management Firms Engineering and landscape architect services. THE ASSOCIATION IS NOT OBLIGATED TO ACCEPT THE LOWEST BID

63 OBTAIN COMPETITIVE BIDS (1), F.S (2) F.S. Continued In a Homeowner s Association, Chapter 720 provides, If a contract for the purchase, lease, or renting of materials or equipment, or for the provision of services, requires payment by the association that exceeds 10 % of the total annual budget of the association, including reserves, the association must obtain competitive bids for the materials, equipment, or services. Nothing contained in this section shall be construed to require the association to accept the lowest bid.

64 Unit Owner Delinquency (11), F.S (8)(a), F.S. Condominums: If the unit is occupied by a tenant and the unit owner is delinquent in paying any monetary obligation due to the association, the association may make a written demand that the tenant pay to the association the subsequent rental payments and continue to make such payments until all monetary obligations of the unit owner related to the unit have been paid in full to the association. The tenant must pay the monetary obligations to the association until the association releases the tenant or the tenant discontinues tenancy in the unit. 1. The association must provide the tenant a notice, by hand delivery or United States mail, in substantially the following form: Pursuant to section (11), Florida Statutes, the association demands that you pay your rent directly to the condominium association and continue doing so until the association notifies you otherwise. Payment due the condominium association may be in the same form as you paid your landlord and must be sent by United States mail or hand delivery to (full address), payable to (name). Your obligation to pay your rent to the association begins immediately, unless you have already paid rent to your landlord for the current period before receiving this notice. In that case, you must provide the association written proof of your payment within 14 days after receiving this notice and your obligation to pay rent to the association would then begin with the next rental period. Pursuant to section (11), Florida Statutes, your payment of rent to the association gives you complete immunity from any claim for the rent by your landlord for all amounts timely paid to the association.

65 Unit Owner Delinquency (11), F.S (8)(a), F.S. continued. 2. The association must mail written notice to the unit owner of the association s demand that the tenant make payments to the association. 3. The association shall, upon request, provide the tenant with written receipts for payments made. 4. A tenant is immune from any claim by the landlord or unit owner related to the rent timely paid to the association after the association has made written demand. (b) If the tenant paid rent to the landlord or unit owner for a given rental period before receiving the demand from the association and provides written evidence to the association of having paid the rent within 14 days after receiving the demand, the tenant shall begin making rental payments to the association for the following rental period and shall continue making rental payments to the association to be credited against the monetary obligations of the unit owner until the association releases the tenant or the tenant discontinues tenancy in the unit.

66 Unit Owner Delinquency (11), F.S (8)(a), F.S. continued (c) The liability of the tenant may not exceed the amount due from the tenant to the tenant s landlord. The tenant s landlord shall provide the tenant a credit against rents due to the landlord in the amount of moneys paid to the association. (d) The association may issue notice under s and sue for eviction under ss as if the association were a landlord under part II of chapter 83 if the tenant fails to pay a required payment to the association after written demand has been made to the tenant. However, the association is not otherwise considered a landlord under chapter 83 and specifically has no obligations under s (e) The tenant does not, by virtue of payment of monetary obligations to the association, have any of the rights of a unit owner to vote in any election or to examine the books and records of the association. (f) A court may supersede the effect of this subsection by appointing a receiver.

67 Unit Owner Delinquency (11), F.S (8)(a), F.S. continued. Homeowner s Associations If the parcel is occupied by a tenant and the parcel owner is delinquent in paying any monetary obligation due to the association, the association may demand that the tenant pay to the association the subsequent rental payments and continue to make such payments until all the monetary obligations of the parcel owner related to the parcel have been paid in full to the association and the association releases the tenant or until the tenant discontinues tenancy in the parcel. 1. The association must provide the tenant a notice, by hand delivery or United States mail, in substantially the following form: Pursuant to section (8), Florida Statutes, we demand that you make your rent payments directly to the homeowners association and continue doing so until the association notifies you otherwise. Payment due the homeowners association may be in the same form as you paid your landlord and must be sent by United States mail or hand delivery to (full address), payable to (name). Your obligation to pay your rent to the association begins immediately, unless you have already paid rent to your landlord for the current period before receiving this notice. In that case, you must provide the association written proof of your payment within 14 days after receiving this notice and your obligation to pay rent to the association would then begin with the next rental period. Pursuant to section (8), Florida Statutes, your payment of rent to the association gives you complete immunity from any claim for the rent by your landlord.

68 Unit Owner Delinquency (11), F.S (8)(a), F.S. continued. 2. A tenant is immune from any claim by the parcel owner related to the rent timely paid to the association after the association has made written demand. (b) If the tenant paid rent to the landlord or parcel owner for a given rental period before receiving the demand from the association and provides written evidence to the association of having paid the rent within 14 days after receiving the demand, the tenant shall begin making rental payments to the association for the following rental period and shall continue making rental payments to the association to be credited against the monetary obligations of the parcel owner until the association releases the tenant or the tenant discontinues tenancy in the unit.

69 Unit Owner Fines or Suspension of Use Rights , F.S ,F.S. Condominiums provide: Each unit owner, each tenant and other invitee, and each association is governed by, and must comply with the provisions of, this chapter, the declaration, the documents creating the association, and the association bylaws which shall be deemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, or both, for failure to comply with these provisions may be brought by the association or by a unit owner against: (a) The association. (b) A unit owner. (c) Directors designated by the developer, for actions taken by them before control of the association is assumed by unit owners other than the developer. (d) Any director who willfully and knowingly fails to comply with these provisions. (e) Any tenant leasing a unit, and any other invitee occupying a unit. The prevailing party in any such action or in any action in which the purchaser claims a right of voidability based upon contractual provisions as required in s (1)(a) is entitled to recover reasonable attorney s fees. A unit owner prevailing in an action between the association and the unit owner under this section, in addition to recovering his or her reasonable attorney s fees, may recover additional amounts as determined by the court to be necessary to reimburse the unit owner for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. Actions arising under this subsection may not be deemed to be actions for specific performance.

70 Unit Owner Fines or Suspension of Use Rights , F.S ,F.S. continued. (2) A provision of this chapter may not be waived if the waiver would adversely affect the rights of a unit owner or the purpose of the provision, except that unit owners or members of a board of administration may waive notice of specific meetings in writing if provided by the bylaws. Any instruction given in writing by a unit owner or purchaser to an escrow agent may be relied upon by an escrow agent, whether or not such instruction and the payment of funds thereunder might constitute a waiver of any provision of this chapter. (3) The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may not become a lien against a unit. A fine may be levied on the basis of each day of a continuing violation, with a single notice and opportunity for hearing. However, the fine may not exceed $100 per violation, or $1,000 in the aggregate. (a) An association may suspend, for a reasonable period of time, the right of a unit owner, or a unit owner s tenant, guest, or invitee, to use the common elements, common facilities, or any other association property for failure to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association.

71 Unit Owner Fines or Suspension of Use Rights , F.S ,F.S. continues (b) A fine or suspension may not be imposed unless the association first provides at least 14 days written notice and an opportunity for a hearing to the unit owner and, if applicable, its occupant, licensee, or invitee. The hearing must be held before a committee of other unit owners who are neither board members nor persons residing in a board member s household. If the committee does not agree, the fine or suspension may not be imposed. (4) If a unit owner is more than 90 days delinquent in paying a monetary obligation due to the association, the association may suspend the right of the unit owner or the unit s occupant, licensee, or invitee to use common elements, common facilities, or any other association property until the monetary obligation is paid in full. This subsection does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators. The notice and hearing requirements under subsection (3) do not apply to suspensions imposed under this subsection. (5) An association may suspend the voting rights of a unit or member due to nonpayment of any monetary obligation due to the association which is more than 90 days delinquent. A voting interest or consent right allocated to a unit or member which has been suspended by the association may not be counted towards the total number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under this chapter or pursuant to the declaration, articles of incorporation, or bylaws. The suspension ends upon full payment of all obligations currently due or overdue the association. The notice and hearing requirements under subsection (3) do not apply to a suspension imposed under this subsection. (6) All suspensions imposed pursuant to subsection (4) or subsection (5) must be approved at a properly noticed board meeting. Upon approval, the association must notify the unit owner and, if applicable, the unit s occupant, licensee, or invitee by mail or hand delivery.

72 TYPES OF MEETINGS Board of Director s Meetings Budget Meetings Annual Meetings Special Member s Meetings Emergency Meetings Committee Meetings

73 Notice of Meetings (2)(c),(d),&(e), F.S , F.S. Condominiums: Board of administration meetings. Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements. Unit owner meetings. 1. An annual meeting of the unit owners shall be held at the location provided in the association bylaws and, if the bylaws are silent as to the location, the meeting shall be held within 45 miles of the condominium property. However, such distance requirement does not apply to an association governing a timeshare condominium. Budget meeting. 1. Any meeting at which a proposed annual budget of an association will be considered by the board or unit owners shall be open to all unit owners. At least 14 days prior to such a meeting, the board shall hand deliver to each unit owner, mail to each unit owner at the address last furnished to the association by the unit owner, or electronically transmit to the location furnished by the unit owner for that purpose a notice of such meeting and a copy of the proposed annual budget. An officer or manager of the association, or other person providing notice of such meeting, shall execute an affidavit evidencing compliance with such notice requirement, and such affidavit shall be filed among the official records of the association.

74 Notice of Meetings (2)(c),(d),&(e), F.S , F.S. continues.. Homeowner s Associations A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community. (b) Members have the right to attend all meetings of the board. The right to attend such meetings includes the right to speak at such meetings with reference to all designated items. The association may adopt written reasonable rules expanding the right of members to speak and governing the frequency, duration, and other manner of member statements, which rules must be consistent with this paragraph and may include a sign-up sheet for members wishing to speak. Notwithstanding any other law, meetings between the board or a committee and the association s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors. (c) The bylaws shall provide for giving notice to parcel owners and members of all board meetings and, if they do not do so, shall be deemed to provide the following:

75 Notice of Meetings (2)(c),(d),&(e), F.S , F.S. continues.. 1. Notices of all board meetings must be posted in a conspicuous place in the community at least 48 hours in advance of a meeting, except in an emergency. In the alternative, if notice is not posted in a conspicuous place in the community, notice of each board meeting must be mailed or delivered to each member at least 7 days before the meeting, except in an emergency. Notwithstanding this general notice requirement, for communities with more than 100 members, the bylaws may provide for a reasonable alternative to posting or mailing of notice for each board meeting, including publication of notice, provision of a schedule of board meetings, or the conspicuous posting and repeated broadcasting of the notice on a closed-circuit cable television system serving the homeowners association. However, if broadcast notice is used in lieu of a notice posted physically in the community, the notice must be broadcast at least four times every broadcast hour of each day that a posted notice is otherwise required. When broadcast notice is provided, the notice and agenda must be broadcast in a manner and for a sufficient continuous length of time so as to allow an average reader to observe the notice and read and comprehend the entire content of the notice and the agenda. The bylaws or amended bylaws may provide for giving notice by electronic transmission in a manner authorized by law for meetings of the board of directors, committee meetings requiring notice under this section, and annual and special meetings of the members; however, a member must consent in writing to receiving notice by electronic transmission. 2. An assessment may not be levied at a board meeting unless the notice of the meeting includes a statement that assessments will be considered and the nature of the assessments. Written notice of any meeting at which special assessments will be considered or at which amendments to rules regarding parcel use will be considered must be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television not less than 14 days before the meeting.

76 Annual Meetings (2)(d), F.S (2), F.S. Both Condominiums and HOA s provide, There shall be an annual meeting of the unit owners held at the location provided in the association bylaws and, if the bylaws are silent as to the location, the meeting shall be held within 45 miles of the property. The purpose of the annual meeting is: To fill any vacancy on the Board caused by the expiration of a term which must be filled by electing a new board member. The election must be held the same day and place as the association s annual meeting. To conduct any other business. Written notice must be mailed, delivered or electronically transmitted to each unit owner and posted at least 14 continuous days preceding the meeting.

77 Condominiums only can discuss via (2)(c) Board of administration meetings. Meetings of the board of administration at which a quorum of the members is present are open to all unit owners. Members of the board of administration may use as a means of communication but may not cast a vote on an association matter via . A unit owner may tape record or videotape the meetings. The right to attend such meetings includes the right to speak at such meetings with reference to all designated agenda items. The division shall adopt reasonable rules governing the tape recording and videotaping of the meeting. The association may adopt written reasonable rules governing the frequency, duration, and manner of unit owner statements.

78 ELECTIONS

79 CONDOMINIUMS

80 Advance Notice Two notices must be mailed, hand delivered or electronically transmitted to the unit owners prior to the election.

81 Advanced Notice continued. The First Notice of Election The first notice of election must be mailed, hand delivered or electronically transmitted to each unit owner at least 60 days prior to the election and must contain the correct name and mailing address of the association. The notice should remind the unit owners that if they wish to run for election they must submit their notices of intent, in writing to the association not less than 40 days prior to the election.

82 Advanced Notice continued. The Second notice of election The second notice of election must be mailed or hand delivered to the unit owners with the annual meeting notice and agenda not less than 14 days, and not more than 34 days, prior to the election. Included with the second notices are the printed ballots, the envelopes for returning the completed ballots and any candidate information sheets that have been submitted to the board.

83 Electing your Board of Administration (4) The members of the board shall be elected by written ballot or voting machine. Proxies may not be used in electing the board in general elections or elections to fill vacancies caused by recall, resignation, or otherwise, unless otherwise provided in this chapter. This subparagraph does not apply to an association governing a timeshare condominium. a. At least 60 days before a scheduled election, the association shall mail, deliver, or electronically transmit, by separate association mailing or included in another association mailing, delivery, or transmission, including regularly published newsletters, to each unit owner entitled to a vote, a first notice of the date of the election. Any unit owner or other eligible person desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association at least 40 days before a scheduled election. Together with the written notice and agenda as set forth in subparagraph 3., the association shall mail, deliver, or electronically transmit a second notice of the election to all unit owners entitled to vote, together with a ballot that lists all candidates. Upon request of a candidate, an information sheet, no larger than 81/2 inches by 11 inches, which must be furnished by the candidate at least 35 days before the election, must be included with the mailing, delivery, or transmission of the ballot, with the costs of mailing, delivery, or electronic transmission and copying to be borne by the association. The association is not liable for the contents of the information sheets prepared by the candidates. In order to reduce costs, the association may print or duplicate the information sheets on both sides of the paper. The division shall by rule establish voting procedures consistent with this sub-subparagraph, including rules establishing procedures for giving notice by electronic transmission and rules providing for the secrecy of ballots. Elections shall be decided by a plurality of ballots cast. There is no quorum requirement; however, at least 20 percent of the eligible voters must cast a ballot in order to have a valid election. A unit owner may not permit any other person to vote his or her ballot, and any ballots improperly cast are invalid. A unit owner who violates this provision may be fined by the association in accordance with s A unit owner who needs assistance in casting the ballot for the reasons stated in s may obtain such assistance. The regular election must occur on the date of the annual meeting. Notwithstanding this sub-subparagraph, an election is not required unless more candidates file notices of intent to run or are nominated than board vacancies exist.