You know that when the Florida legislature is in session, you need to look out for falling debris. This year would be no exception.
The big condominium issue of the year is foreclosure relief for associations, most of whom are suffering when the banks foreclose, and the association loses out. Under 718.116 as currently written, if the bank ends up with the apartment (which, these days, is almost always the case), the bank only owes 6 months maintenance going backwards (or 1% of the loan amount whichever is less). Thus, the bank actually has an incentive to take its sweet time in completing the foreclosure; while it's dragging on, every day that goes by is a loss of revenue for the Association. Not good.
This year's winning formula (and it's a good one!) is contained in Committee Substitute for House Bill 1397, Representative Robaina's (and others) annual effort to legislatively clean up various condo issues. This currently 190 page monster has been assigned to four committees, and only one of them has acted on it, passing it out of committee on April 1. It still has to through three more committees, and the Senate has to agree on the same thing, in order for it to go to the Governor, who may or may not sign it. And the legislative session is already half over! In other words, it's not time yet to break out the champagne, but it is worth looking at.
The bill deals with literally dozens of different issues. This post will focus only on foreclosure relief. I'll wait to see if the bill has any life in it before delving further into it, and explaining more of it in this space.
Here's how the law would work, if passed as currently written; first off, when the Bank files the foreclosure, within 15 days of filing, they have to pay all of the outstanding maintenance, and maybe (I'll check on this and get back to you) outstanding special assessments, too. In any event, they now have a disincentive to waiting to start the foreclosure. If the bank doesn't pay within 15 days, then the Association can have the case dismissed, and be awarded its attorney's fees too! That's teeth, and I like it.
Once the foreclosure is finished, and if the Bank is the buyer at the end, then the Bank would owe 1/2 of all assessments (again, maybe including special assessments) that accrued during the foreclosure case (or 1% of the loan whichever is less; I'd like it to be just the 1/2, but you can't have everything). Thus, the Bank now has a disincentive from delaying the case, too, since every month that goes by, the Bank will owe more.
I'll keep an eye on the bill and report back from time to time. Enjoy.
P.S. Thanks to City of Miami Beach Commissioner Jerry Libbin, who has worked very hard on getting this foreclosure relief for the Assocations. He's done a terrific job at it.
Thursday, April 2, 2009
Monday, March 30, 2009
The Annual Members Meeting - The Nuts and Bolts
Ah, the annual members meeting. Oftentimes it never happens! I've seen that way too often. Just as often, it happens, but it's done wrong, which calls into question the validity of any actions taken by the board that may not have been legally constituted. Nothing but trouble ahead.
So let's stop, take a breath, and do this right. It's not that hard, and an ounce of prevention is worth thousands of dollars of attorney's fees to cure. Here we go.........
[What follows is the typical procedure; make sure to check your declaration, bylaws, articles of incorporation and rules and regulations to see if your association does not follow this process; having said that, many of these steps, by law, control even if your documents are different. I will try to differentiate those rules where I can]
First off, check your condominium documents to find out the date the meeting is supposed to happen. That information is usually in the bylaws, and if not there, look in the articles of incorporation. You'll find it.
There are two major things to be accomplished at the annual meeting:
1. Election of the board of directors;
2. Election (by the new board) of the officers (though check your bylaws; some of them provide that the officers are elected by the unit owners, and not by the board).
Many association also adopt their budget at the annual meeting, though this can be done at a different board meeting.
By law, the annual meeting must take place (get ready for this surprise) annually!! If it has been more than a year since the last annual meeting, schedule it now. Here's the process:
1. 60 day notice; at least 60 days before the annual meeting, the association MUST send written notice (the "first notice") to EVERY SINGLE UNIT OWNER!! Delivery must be by hand delivery, regular mail or electronic transmission, PLUS posting in the usual place on the property.
2. Any unit owner who is eligible to serve on the board (check your bylaws for eligibility; in addition to the bylaws, State law prohibits convicted felons from serving on the board, and recent law prohibits unit owners who are behind on their maintenance from serving) must give WRITTEN notice that they want to run at least 40 days before the election. Instructions to this effect should be included on the first notice (though, oddly, this is not required by law). If any nominee chooses, they can include a "bio" sheet, to be distributed to the unit owners with the second package.
3. At least 14 days before the annual election, a "second package" is delivered to all of the unit owners. The second package must include (a) the ballot, (b) the Notice of the Meeting and (c) the bio sheets, if any. Note; if there are the same or fewer "nominees" than there are people to be elected to the board, there is no need to have an election. In that case, you only need to send out the notice of the meeting. The Notice of the meeting must also be posted in the usual place, and must remain there for the entire 14 day period.
It's also a very good idea to include in the second package a proxy, to allow the unit owner who will not be at the meeting to appoint somebody to vote for them. More on proxies in a different post.
At the meeting, roll is called to determine whether or not there is a "quorum" (meaning, the minimum number of members that must be present in order to have a legal meeting). For annual meetings, by statute, the quorum is just 20% of the unit owners; actually, the law says that at least 20% of the unit owners must VOTE, not just attend. That 20% includes owners who have given proxies to be used for them.
Once it is determined that more than 20% of the unit owners are present, the meeting can go foward.
Look for additional information about this as i publish it here.
DEJ
So let's stop, take a breath, and do this right. It's not that hard, and an ounce of prevention is worth thousands of dollars of attorney's fees to cure. Here we go.........
[What follows is the typical procedure; make sure to check your declaration, bylaws, articles of incorporation and rules and regulations to see if your association does not follow this process; having said that, many of these steps, by law, control even if your documents are different. I will try to differentiate those rules where I can]
First off, check your condominium documents to find out the date the meeting is supposed to happen. That information is usually in the bylaws, and if not there, look in the articles of incorporation. You'll find it.
There are two major things to be accomplished at the annual meeting:
1. Election of the board of directors;
2. Election (by the new board) of the officers (though check your bylaws; some of them provide that the officers are elected by the unit owners, and not by the board).
Many association also adopt their budget at the annual meeting, though this can be done at a different board meeting.
By law, the annual meeting must take place (get ready for this surprise) annually!! If it has been more than a year since the last annual meeting, schedule it now. Here's the process:
1. 60 day notice; at least 60 days before the annual meeting, the association MUST send written notice (the "first notice") to EVERY SINGLE UNIT OWNER!! Delivery must be by hand delivery, regular mail or electronic transmission, PLUS posting in the usual place on the property.
2. Any unit owner who is eligible to serve on the board (check your bylaws for eligibility; in addition to the bylaws, State law prohibits convicted felons from serving on the board, and recent law prohibits unit owners who are behind on their maintenance from serving) must give WRITTEN notice that they want to run at least 40 days before the election. Instructions to this effect should be included on the first notice (though, oddly, this is not required by law). If any nominee chooses, they can include a "bio" sheet, to be distributed to the unit owners with the second package.
3. At least 14 days before the annual election, a "second package" is delivered to all of the unit owners. The second package must include (a) the ballot, (b) the Notice of the Meeting and (c) the bio sheets, if any. Note; if there are the same or fewer "nominees" than there are people to be elected to the board, there is no need to have an election. In that case, you only need to send out the notice of the meeting. The Notice of the meeting must also be posted in the usual place, and must remain there for the entire 14 day period.
It's also a very good idea to include in the second package a proxy, to allow the unit owner who will not be at the meeting to appoint somebody to vote for them. More on proxies in a different post.
At the meeting, roll is called to determine whether or not there is a "quorum" (meaning, the minimum number of members that must be present in order to have a legal meeting). For annual meetings, by statute, the quorum is just 20% of the unit owners; actually, the law says that at least 20% of the unit owners must VOTE, not just attend. That 20% includes owners who have given proxies to be used for them.
Once it is determined that more than 20% of the unit owners are present, the meeting can go foward.
Look for additional information about this as i publish it here.
DEJ
Friday, March 20, 2009
Welcome to the Practical Florida Condominium Association
To the Blogosphere........
Hello, and welcome to the Practical Florida Condominium Association.
My name is Daniel Jonas, and I am an attorney in Florida. I've been an attorney in the north end of Miami Beach for nearly 30 years, and in that time have done a substantial amount of work for (and against) small to medium condominium and cooperative associations, mostly in Miami-Dade County. I've operated a small condominium association management company, been counsel to many small associations, represented hundreds of unit owners, and handled all aspects of association matters; negotiations, mediations, arbitrations, litigation, you name it, I've done it.
And the one thing I have learned is that there is no easy, consistent, reliable source of information for unit owners, board members and officers so that everybody knows the rules of the game.
It is my hope in this blog to inform everybody in the association community about what they need to know; to be a sounding board for interesting discussions; to be a central location to disseminate new statutes and court and arbitration decisions about association matters, and otherwise be a clearinghouse for everyone interested in these issues.
I invite those of you who are so motivated to guest blog; I'm looking for anybody who has expertise in any related areas (insurance, management, trades, etc.) and who is motivated to submit pieces to me, and if they are well written, relevant and interesting, I'll post them.
I look forward to establishing and growing the community, and welcome suggestions.
Daniel Jonas
3/20/09
Hello, and welcome to the Practical Florida Condominium Association.
My name is Daniel Jonas, and I am an attorney in Florida. I've been an attorney in the north end of Miami Beach for nearly 30 years, and in that time have done a substantial amount of work for (and against) small to medium condominium and cooperative associations, mostly in Miami-Dade County. I've operated a small condominium association management company, been counsel to many small associations, represented hundreds of unit owners, and handled all aspects of association matters; negotiations, mediations, arbitrations, litigation, you name it, I've done it.
And the one thing I have learned is that there is no easy, consistent, reliable source of information for unit owners, board members and officers so that everybody knows the rules of the game.
It is my hope in this blog to inform everybody in the association community about what they need to know; to be a sounding board for interesting discussions; to be a central location to disseminate new statutes and court and arbitration decisions about association matters, and otherwise be a clearinghouse for everyone interested in these issues.
I invite those of you who are so motivated to guest blog; I'm looking for anybody who has expertise in any related areas (insurance, management, trades, etc.) and who is motivated to submit pieces to me, and if they are well written, relevant and interesting, I'll post them.
I look forward to establishing and growing the community, and welcome suggestions.
Daniel Jonas
3/20/09
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