Condo & HOA Law, Naples Daily News

Naples Daily News Q&A | June 14, 2020 | Use of Title When Campaigning for Re-Election

Q: The Vice President of our condominium association is running for re-election and sent a letter to all owners outlining why he should be re-elected. The letter was signed as the Vice President and I feel it is improper to use the title when campaigning. Does this invalidate the election?

T.D., Naples

A: Most likely, no, it does not invalidate any election results. The Vice President is a candidate just like everyone else and entitled to campaign just like anyone else.

The Florida Administrative Code contains a provision that prohibits the Association from including an official endorsement to owners along with the second notice of the election and the ballot. It is important to note that this same code provision does not strictly apply to homeowners association election and the statute does not address this situation at all.

We typically advise clients that incumbents can campaign just like everyone else, but that these types of campaign materials should not be on the Association’s letterhead or convey that certain endorsements are official positions of the Association as opposed to individual candidates or owners.

Q: Due to schools being closed and now summer, we anticipate even more violations at our clubhouse by kids not obeying the rules. What are the penalties for this?

H.H., Bonita Springs

A: Generally speaking, the homeowners are responsible for the actions of their children in the community – including rule violations at the clubhouse. If the child breaks the rules, just like if one of the owners broke the rules or if an adult family guest broke the rules, the owner is responsible and can be penalized.

In this context, you could fine the owner $100 per violation or a different amount depending on your specific governing documents. In a condominium, it could not be more than $100 per violation but some condominium documents provide that fines may not exceed, for example, $50 per violation. The parents would obviously not be happy if they are financially penalized for the violations.

Additionally, you could suspend their right to use the amenity for a reasonable period of time. Both the condominium and HOA statutes provide that you can suspend the right to use amenities for a reasonable period of time.

Before you pursue either of these options, note that you must follow the procedures in the statutes to fine or suspend, which broadly include an obligation to provide 14 days’ notice and opportunity for a hearing. The process typically requires the Board to vote to impose a penalty, and then a separate committee convenes to conduct a hearing with at least 14 days’ notice to the owner where the owner has an opportunity to present evidence and argue why a fine or suspension should not be imposed. If the committee upholds the fine or suspension imposed by the Board, it is levied and a fine is due and payable 5 days after the hearing.

Q: As the end of the quarter approaches, we fear that a number of our homeowners will not pay the assessment on time. Are we required to provide additional time to pay due to coronavirus?

P.H., Marco Island

A: At the time I write this article, there is no active legislation that would impact your ability to require timely payment of assessments. First, you would want to check your governing documents to determine when the assessment is actually deemed “late” as some documents provide 10 or 15 days and others provide 30 days.

There are attempts to implement legislation at the federal level that would preclude the collection of consumer debts and residential assessments are considered consumer debts. This legislation would have a significant impact on your ability to timely bring in your sole source of revenue. The Florida Governor has also extended a prohibition of mortgage foreclosures and tenant evictions. Although your condominium or HOA lien is not technically a mortgage, some counties across Florida have interpreted this moratorium to lien foreclosures and others have not.

Thus, at this moment, it is business as usual in terms of paying and collection assessments with the exception of foreclosure proceedings.

Q: Our election was delayed because of the virus and I was just elected this past week. I am told that I need to take go to training to serve on the Board. What does this mean and how is this possible due to COVID-19 concerns?

A.M., Marco Island

A: First, congratulations! Second, yes, the statute provides that newly elected or appointed directors must take action within 90 days of being elected or appointed. One option requires the new Director to certify in writing to the association that he or she has read the governing documents and will work to uphold such documents and polices 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. In lieu of this written certification, within 90 days after being elected or appointed to the board, the newly elected or appointed director may submit a certificate of having satisfactorily completed the educational curriculum administered by a division-approved condominium education provider within 1 year before or 90 days after the date of election or appointment.

Most newly elected Directors opt for the class because a) they don’t want to put their name to having read those many pages; and b) the classes can be enjoyable. Our Firm typically teaches dozens of classes throughout the year and large group gathering have obviously been untenable for months and for the foreseeable future. As a result, many certification providers are obtaining approval to teach the classes electronically and my partners Richard DeBoest and Steve Adamczyk recorded a certification class which is constantly available for use in this context.

The final note is that the certification is valid for your uninterrupted term in office. So, if you continue to be re-elected, you would not need to take the class again or sign the certificate again. If you leave the Board for any reason and are subsequently elected or appointed to the Board again, you would need to once again take the class or sign the written certificate.

 

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John C. Goede Esq. is co-founder and shareholder of the Law Firm of Goede, Adamczyk, DeBoest & Cross, PLLC. Visit our website at www.gadclaw.com, or to ask questions about your issues for future columns, send your inquiry to: info@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.