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When replying with a question or request, please include your name and the legal name of your Association or Management Company (no acronyms, please, unless your legal name on the Article of Incorporation lists an acronym.)
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In This Issue:
CM On Demand Debuts! Board Certification Classes When You Want Them!
Is Your Website ADA Compliant?
2020 Legislative Update - The Unpredictable Session
Free Fall Webinars
Foreclosure Moratoriums
Applause!
What Do YOU Want? Win a Gift Card!
Editor's Note
Follow Us and Win a Gift Card!
Who is the Newest Most Awesome Board Member Recipient?
Celebration! July & August Birthdays
About the Green Marble
Valued Business Partners
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CM On Demand Makes Its Debut!
Did you ever need a Board Certification Class and can’t find someone who is offering it? Or can only find one that is being offered for a fee? Prefer a Board Certification class taught by attorneys who focuses their practice Association Law? Well, here it is!
It's here! Our brand-new service – CM On Demand! Using this new service, you can take the Board Certification at your leisure – whenever you want it! To our knowledge, as of this date, we are the only law firm in Central Florida, or even the State, to offer complimentary Board Certification classes “on demand.” Whether you are a client or non client, these classes are open to all Board/Committee Members and Residents in any Florida Community Association. These classes are not being offered for manager credit at this time.
We offer three separate classes:
Let the Good Times Roll: The Mobile Home Park Board Certification Class
Great Balls of Fire: The Condominium & Cooperative Board Certification Class
I Walk the Line: The HOA Board Certification Class
To find our new CM On Demand classes, visit our website’s CM On Demand section. Then simply select which class you want to take. Upon completing a short registration form, you will receive an instructional email with the link to the class and instructions to how to receive your Certificate of Attendance. So, pop the popcorn, pour your favorite beverage, grab your pen and pad, settle in your easy chair, and view this class on your desktop computer, smart phone, or tablet! When it is over, use the link provided to submit your completed survey and your Certificate of Attendance will be provided electronically within 21 business days (please note that is NOT calendar days).
We are very excited to present these State required Board Certification classes for your educational and viewing pleasure. If you want would like to give your opinion on or about various aspects of our 2021 seminars, simply use this link and be entered in a drawing for a gift card.
If you prefer not to take the class, please use this link to request an Affidavit "opting out" of taking the class.
Another personalized service from Clayton & McCulloh, the firm that Embraces Community. Shouldn't your Association have a law firm like us working for you?
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Is Your Website ADA Compliant?
Unfortunately, the risks to associations continue to escalate. As many of you are aware, associations often can be at risk for violations of the Fair Housing Act, as well as the Americans with Disabilities Act (ADA). One of the issues that seems to be emerging deals with the risk associated with associations’ websites failing to be ADA compliant.
Unfortunately, associations, ostensibly, are at risk if their websites are not ADA-compliant. Moreover, there are technical nuances associated with this above and beyond the association’s mere legal requirements. As such, if your association is unsure with respect to whether your association’s website complies and/or whether the association is required to comply, the association should consider contacting its law firm to discuss these issues more fully and to coordinate with the requisite professionals (including computer experts) to address these issues and mitigate the association’s risk, at least to the extent possible.
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We are not suggesting that all associations must comply with the ADA or that their websites must comply the ADA. Rather, there is an issue whether the Association must be ADA-compliant, including with respect to their websites. Please remember that the ADA is, generally, an anti-discrimination statute. More specifically, it essentially prohibits discrimination predicated on disabilities. However, the ADA primarily addresses, and is pertinent with respect to, “public accommodations.” While most associations probably believe that they do not provide public accommodations, and therefore have no responsibility to comply with the ADA, this may, or may not, be true predicated on numerous facts and factors. Please further understand that to the extent your association opens its amenities for use by non-residents (for example., the Boy Scouts, little leagues, outside events), there is a much greater likelihood that your association could be required to comply with the ADA. There are, additional factors which could trigger the requirements of the ADA, and in fact, some of the courts appear split on some of these issues related to community associations and ADA compliance.
Given the above, please appreciate that whether a particular association must be ADA-compliant, and have their website ADA-compliant, may be dependent on that association’s particular facts and circumstances. As such, associations should consider specifically addressing these issues with their attorney.
If your association is required to comply with the ADA, your website, ostensibly, may need to comply with “WCAG 2.1 Guidelines.” As such, your association may also need to talk to a website designer who is proficient and knowledgeable with respect to ADA requirements and requisite coding.
Editor's Note: If you would us to present a webinar/seminar on Association websites, cast your vote in our Survey in the What Do You Want article below!
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Legislative Update for 2020: The Unpredictable Session
As I’m sure everyone is aware, COVID-19 has affected just about every part of our lives. The Florida Legislature was also not immune from the effects of COVID-19. While a large number of bills potentially affecting community associations were proposed during the 2020 legislative session, nevertheless, as COVID-19 began to dominate the end of the session in early to mid-March, naturally, a huge number of proposed bills failed to be approved by the legislature and/or the Governor. As such, as of the drafting of this article, the Legislature and Governor have only approved two (2) very minor bills affecting community associations from this last legislative session. However, we have become aware of several additional bills which could affect community associations, which have recently been presented by the Legislature to the Governor, for signature or veto. We will update on this matter accordingly. As such, this article will examine each of these two (2) very minor bills which have been signed by the Governor.
1. Law of Florida 2020-5/Senate Bill 476/implemented as Florida Statue 718.129, Florida Statute 719.131, and Florida Statute 720.318.
Pursuant to this bill, an association may not prohibit a resident or guest law enforcement officer from parking an assigned vehicle in an area where an owner, resident or guest would otherwise be entitled to park.
2. Law of Florida 2020-11/Senate Bill 140/implemented as Florida Statute 791.08. Pursuant to this bill, fireworks are now specifically allowed to be used (without need for an agriculture waiver) by persons on New Year’s Eve, New Year’s Day, and on Independence Day. However, this law does not supersede any prohibition in a Declaration of Covenants, or other Covenant running with the land, under Florida Statute 720. However, a Board may not promulgate rules that would abrogate a homeowners’ right to use fireworks.
For your information, it appears that this bill only affects homeowners’ associations as opposed to condominiums and/or co-operative associations. Additionally, per this bill, if the governing documents do not already specifically prohibit this, a homeowners’ association wanting to further regulate fireworks would need to amend the Declaration to specifically prohibit fireworks by a membership vote.
One question that a homeowners’ association may want to consider is if the homeowners’ association Declaration allows the Declaration to be amended by a vote of the Board of Directors, does this statute specifically require some sort of vote of the membership of the association in order to amend the Declaration with regard to use and/or display of fireworks on these three (3) specific days? Certainly, this is a question that might need to be addressed by some associations.
The COVID-19 pandemic was a surprise, and certainly had an effect on the conduct, and especially the conclusion, of this year’s legislative session. Clayton & McCulloh expects far more significant legislation affecting associations to be addressed in next year’s legislative session starting in early March 2021.
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The second half of our seminar season is fast approaching and while we are still unsure if we will be presenting live seminars due to COVID-19, we will be presenting our classes via live webinars. As of this date, here is what is coming up
September
October
The October seminars conclude our 2020 Seminar Schedule. If you have suggestions as to what topics, locations, day of the week, speakers, etc. we will feature in 2021, complete this survey by August 30th (see Win a Gift Card button below) and be entered into a drawing for a gift card.
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What the Heck is Going On with
Florida Foreclosures?!
Many of our clients have inquired what is happening with foreclosures in Florida over the last few months. Some fear tough times ahead, and others are already facing them. Our thoughts on whether community associations should grant owners requests for refunds or reductions regarding assessments, or cease collection efforts (in short, no and no) may be helpful. That said, Gov. DeSantis’ moratorium on residential mortgage foreclosures began with the entry of Executive Order No. (“EO”) 2020-94 on April 2, 2020, and has been extended four times (see EOs 2020-121, 2020-137, 2020-159, 2020-180). Most recently, EO 2020-180 continued the suspension and tolling of any Florida Statute which provides for a mortgage foreclosure cause of action, until at least the end of August.
In other words, until these Executive Orders ("EOs") expire or are otherwise lifted, a mortgagee’s (i.e., lender’s) right to file or complete a mortgage foreclosure action is temporarily eliminated. Arguably, these EOs could also preclude a mortgagee from taking steps to advance an existing mortgage foreclosure action, because the entire statute, and not just the option to file a new case, has been eliminated. Accordingly, the aggressive activity frequently recommended by the author to advance stagnant mortgage foreclosures is presently subject to challenge, if not outright prohibited. Likewise, although Clayton & McCulloh continues diligently checking the status of these cases, few - if any - status updates are expected until the moratorium is lifted.
Community association managers and directors may also wonder what this means for their own collection efforts. Legally, the moratorium does not affect an association’s ability to proceed with lien foreclosure actions; the EOs’ language is sufficiently clear to include only mortgage foreclosures. Unfortunately, practically speaking matter, some Clerks of Court and judges have nevertheless unilaterally interpreting the moratorium to include our community association clientele, and others are subject to local (county or circuit wide) administrative orders which exceed the limitations set forth in the EOs. Some judges still refuse to schedule hearings in lien foreclosure cases, outright refusing to consider whether the moratorium actually applies. Other judges have canceled hearings at the last minute (some multiple times). Unfortunately, judges control their calendars, and a judge’s refusal to schedule a hearing essentially means that the matter is “on hold.”
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By way of a brief commentary, the moratorium appears to be the figurative equivalent of placing a kids’ bandage on a severed limb. Unless an addendum to the loan is reached, most loans will continue accruing interest, late fees, attorney’s fees, and costs even if the lender cannot foreclose. The author anticipates a blitz of foreclosure filings, and filings within existing cases, once the moratorium ends. Worse yet, those who have not paid their mortgages (relying on this moratorium as a stay of collection) may suddenly find themselves obligated to pay multiple months of accumulated charges to avoid a foreclosure action being filed.
Fortunately, many associations are taking this time to reach payment plans with owners, or to foreclose and rent properties which do not require too much “clean up” while lenders are “on hold.” We cannot know whether Gov. DeSantis will continue extending the moratorium; that may depend on the status of the pandemic in coming months. However, we do know that obtaining guidance from your legal counsel may leave your community in a much better position to deal with the end result of this moratorium, and the pandemic as a whole. We hope everyone is able to stay safe and healthy during this troubling time, and remain available to serve our clients.
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It is always so appreciated when we receive compliments on our work and/or employees. Here are a few kudos that we received recently:
Alan Schwartzseid received this kudo from Gris Romero, Collections Officer, for Evergreen Lifestyle Management
"YOU ARE THE BOMB! Thank you for everything that you do for Evergreen and our communities. And a huge shout-out to your amazing team for keeping up with everything that we throw your way."
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Then Arlene Ring received these kind words from Sam Tyndall of Wellington at Kings Ridge: "I realize a portion of the article in the last newsletter was a reprint, but it was a fantastic article and covered in detail the importance of taking your position on a Board of Directors seriously. I enjoyed the entire article and thanks so much for sharing."
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Finally, Virginia Sciliano of Lancaster at Kings Ridge had this high praise for the recent "I Walk the Line": The HOA Board Certification Class: "The June 18th class was an outstanding seminar and the staff did a really great job." |
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What Do YOU Want?
It is that time of the year where we start planning our 2021 Schedule of Seminars and Webinars. If you would like to help shape our forthcoming season and be entered into a drawing for a gift card, please complete our Suggestions for 2021 Seminars by midnight August 30th (we have extended the deadline listed on the survey due to internal deadline changes).
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Some of our initials thoughts for topics are:
How to Handle Bad Board Members;
Websites for Associations;
Dealing with Wildlife (Coyotes, Cane Toads, Snakes, and other destructive wildlife);
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Handling Acts of God;
Using Social Media to the Association's Advantage;
Rehabilitating the Association Image to Owners and the Public;
Advice from the Experts (Association Vendors);
plus many other topics.
Tell us what you want. We base our selections on your suggestions. And the kicker? Be entered into a drawing for a gift card!
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Editor's Note
No, you didn't miss an edition. There was no Green Marble or CM Update published in July. Both newsletters will be combined with this August issue.
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And Be Entered into a Drawing for a Gift Card!
Now through September 30, 2020, if you elect to follow us on our Social Media Accounts, you will be entered into our Social Media Gift Card Drawing. We feature three different Social Media accounts:
Facebook - be the first to get important updates on the law, trends, seminar/webinar invitations, and other information affecting Community Association! Follow us by using this link.
C&M LinkedIn - follow us on our LinkedIn page to receive legal information and updates for Community Associations, Licensed Community Association Managers, Vendors servicing Community Associations. Follow us by selecting link.
Our Director of Public Relations' LinkedIn Page - She features a very popular series of informative articles on the non-legal side of Community Associations such as how to conduct an annual meeting, ways to increase owner participation, and much more. Follow her by selecting this link.
So take advantage of these three great resources for Community Associations and a chance to win a Gift Card. Drawing closes October 31st. Follow us now!
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Who is the Newest
Most Awesome Board Member Recipient?
Who are the Most Awesome Board Members in the Ocala area? Chrisann Orlando-Lowder, a manager in Leland's Ocala office, purchased several of our Most Awesome Board Member mugs to bestow upon some hard working, outstanding board members who are simply outstanding in that area. What a thoughtful gesture from a caring manager.
Whether you are Board Member who knows a Most Awesome Board Member or a Manager who would like to recognize a Board Member who has gone out of their way for their Association, consider purchasing one of the beautiful large gold metallic Most Awesome Board Member mugs. You can even recognize your own work and buy yourself one!
If you would like to buy one (or more) mugs, simply select the button below!
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Celebration: Important Industry Leaders'
July & August Birthday
In this issue, we will be celebrating belated Birthday wishes to our friends born in July and birthday wishes to our friends in August. Drum roll, please....here they come!
July 5th - Mary Schlumberger of Schlumberger Accounting Services
July 6th - Barbara Herndon of River Oaks Daytona COA
July 6th - Arlette Tejeda of Sentry Management
July 10th - Randall Edwards of Lake Victoria HOA
July 10th - Marlene Young of Cypress Golf Community HOA
July 11th - Phil Brown of Spring Creek Owners
July 12th - Cindy Polock of Sentry Management
July 13th - Maribel Iriizarry of Bellagia HOA
July 18th - Jack Arons of Bent Tree Subdivision HOA
July 20th - Chris Smeehuyzen of Sentry Management
July 26th -- Laura Pineiro of Sentry Management
July 30th - Christina Miranda of HOA of Sky Lake South #6 & #7
August 2nd - Thomas Herd of Citrus Highlands HOA
August 3rd - John Homer of Golfside Villas COA
August 7th - Rosalie Hernandez of All Coast Realty Management
August 8th - Robert Adams of Compass Pointe HOA
August 8th - Paula Butler of Sentry Management
August 10th - Sonia Padilla of Fox Hollow Community Association
August 15th - Theresa Bonzella of Mastermind Association Management
August 19th - Kathy Watts of Dragon Property Management
August 21st - Beatriz Ortiz of Oviedo Central Park HOA
August 25th - Priscilla Reams of HOA @ Sherwood Forest
August 26th - Douglas Husted of Washington Arms COA
August 26th - Sue MacLarty of Quest Company of Central Florida
August 30th - Richard Huber of Waterview Community Association
August 30th - Mike Wiese of The Ormondy COA
August 31st - Aura Zelada of Windsor Hills Master Association
If you would like your birthday to be featured in our newsletter and/or Facebook page, please provide that information using the button below.
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About the "Green Marble"
The Green Marble is a monthly digital newsletter, a complimentary service for our Association Clients and Managers. C&M also features an additional monthly digital newsletter, "C&M Update," an annual "Community Chat" (delivered to your home via USPS), and "C&M Special Editions." These publications are published by our Public Relations Department. If you have any questions, comments, or suggestions about this newsletter, please contact us at pr@clayton-mcculloh.com.
You are receiving this e-mail as you fall into one of the following categories:
*You are currently a client or client's manager;
* You have requested to be on our mailing list;
*as a former member of BCAM and NECAM you are
provided a complimentary subscription to the C&M mailing list;
*By attending one of our seminars, you agreed to be part of our Confidential Mailing list.
If you elect to be removed from this e-mail service, we will no longer be able to send you seminar invitations, information on changes in the law concerning Community Associations, newsletters, or any other information regarding the Community Association industry. We sincerely hope we can continue to assist you with the challenges that face Community Associations today through this service.
When replying with a question or statement please include your name and the legal name of your Association or Management Company (no acronyms, please, unless your legal name on the Article of Incorporation lists an acronym.)
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Our Valued Business Partners |
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Orlando Office: Maitland
The Clayton & McCulloh Building
1065 Maitland Center Commons Blvd.
Maitland, FL 32751
Phone: (407) 875-2655
Fax: (407) 875-3363
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Melbourne Office: Suntree/Viera
Baytree Corporate Park
1301 Bedford Drive, Suite 102
Melbourne, FL 32940
Phone: (321) 751-3449
Fax: (321) 751-3450
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Toll Free: (888) 793-1486
After Hours - 24/7: (407) 808-2553
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