P r e s e n t e d b y :

Richard DeBoest, Esq.Kristie P. Mace, Esq.

Goede, Adamczyk, DeBoest & Cross, PLLC

2030 McGregor Boulevard, Fort Myers, Florida 33901

(239) 333-2992 | www.GADCLAW.com

info@GADCLaw.com

Within 90 days of being elected/appointed, certification should be provided to the Association’s Secretary that you have read the governing documents, will uphold the governing documents and that you will act as a fiduciary to the Association; or

Within 90 days of being elected/appointed, submit a certificate of attendance for a class provided by a division-approved provider (can attend up to one year prior to being elected/appointed or 90 days after)

Must comply or suspended until completion Secretary should save certificate with official records

for 5 years or tenure of director, whichever is longer

A condominium and/or HOA owner may NOT

be a board member if delinquent in paying

fees or assessments

Delinquent candidates who

owe anything are not eligible!

718.112 (2)(d)2 F.S., 720.306(9)b F.S.

A condominium owner may NOT be a board member if:

Suspended or removed from the board by the DBPR

718.112 (5)3(d)2 F.S.

A condominium and/or HOA owner may NOT be a board member if:

Convicted of a felony,

unless ALL rights have

been restored 5 years

or more……

718.112 (2)(d)(2) F.S., 720.306(9)b F.S.

A Condominium owner may NOT be a board member if:

A co-owner is already on the board◦ Unless they own more than one unit

◦ Unless there are not enough eligible

candidates to fill the vacancies

Same restriction not in chapter 720

718.112 (2)(d)(2) F.S.

First notice of election: 60 Days prior to election

61B-23.0021(4) F.A.C.

Notice of candidacy deadline: 40 Days

61B-23.0021(5) F.A.C.

Candidate information sheets: 35 Days

61B-23.0021(7) F.A.C.

Notice of meeting and second notice of election: 14 Days

61B-23.0021(8)F.A.C.

*60 days to challenge

When Second Notice is mailed, the ballots and

any candidate information sheets shall be included.

Accompanying the ballot shall be an

outer envelope addressed to the person or

entity authorized to receive the ballots

and a smaller inner envelope in which the

ballot shall be placed.

The exterior of the outer envelope

shall indicate the

1) Voter’s name,

2) Unit or unit numbers being voted, and

3) Signature space for the voter.

Once the ballot is filled out, the voter shall place the completedballot in the inner smaller envelope and seal the envelope.

Florida Administrative Code 61B-23.0021

Step One – Electing your Board of Directors

If there is a vacancy on the board, a replacement

may be appointed by the remaining board members.

The replacement will serve out the term of the member he/she replaced.

But check Bylaws

617.0809 F.S., 61B-23.0027 F.A.C.

Board members may serve terms longer than 1 year, if permitted by the governing documents

◦ Check your Bylaws◦ COA-May not serve more than

eight consecutive years unless approved by 2/3’s of all

votes cast in the election or unless

there are not enough eligible

candidates to fill the vacancies

◦ HOA’s >> Check Bylaws

Minimum number of board members is 3

617.0803(1)F.S., 617.0806 F.S.

All community associations must hold at least one annual meeting each year.

Primary purpose is to elect board members and receive updates from the board.

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.

718.112(2)(d)1 F.S.

HOA’s >> check your bylaws

*must have election

Voting rights can be suspended if they are 90 days delinquent.

Amenities too!

Cannot use the vote for ANY purpose – quorum or otherwise!

No hearing required!

HOA election is conducted as specified

in the documents >> check them!!

Members may vote in person or by proxy

Members may nominate themselves at the meeting

If an HOA has a process for choosing candidates in advance, no floor nominations!

720.306 (9)a F.S.

Condos must follow a statutory process

Members may vote in person, or by secret ballot

NO proxies allowed

NO nominations from the floor

To be valid at least 20%

of owners must vote

718.112(2)b F.S.

718.128

Association may conduct elections & other owner votes through internet-based online voting system if owner consents in writing

Must authenticate owner’s identity

Must transmit ballot online that ensures secrecy

Confirm system works at least 14 days in advance

720 & 719

Other security measures required

Electronic voting counts towards quorum

Board must adopt online voting at special meeting

Must allow people to vote by traditional ballot if they wish to

What is a meeting?

“Quorum of the board together

discussing association business”

Board can talk via e mail and it is not a meeting but no decisions can be made via email.

Robert’s Rules of Order

• A manual of parliamentary procedure that governs the Association• Meeting format

• Call to Order, Confirmation of Quorum, review and approval of previous minutes, new business, old business, adjournment

• Meeting Notice should include an agenda• Recognize Speakers- maintain order• Motions

• Motion should be made, followed by a second from another member, discussion, call to question, then vote

• Discussion from Floor• Should allow members right to speak

• 3 minutes if no established policies• If unruly, right to adjourn meeting as long as new time, date and

place is announced

Owners have the right to attend Board meetings except:

◦ 1. With attorney to discuss attorney client

privileged topic

◦ 2. Personnel matter

◦ 3. Emergency matter

Owners have the right to speak on all agenda items up to 3 minutes.

48 hour posted notice for regular board meetings.

14 days mailed and posted notice for special board meetings to:

◦ 1. Adopt a rule affecting the use of the Unit or Parcel.

◦ 2. Adopt a special assessment.

◦ 3. Board Resolution authorizing electronic voting.

◦ 4. Budget adoption (condo)

Fiduciary Duties

Business Judgment Rules◦ Board members are presumed to have acted in

good faith and in the best interest of the association as long as they’ve taken steps that a reasonable person would have take in similar circumstances

Keep EVERYTHING Forever!!!

Governing Documents

Rules

Contracts

Financial Reports

Accounting Records

Owner Roster

Meeting Minutes

Plans, Permits, Warranties718.111(12)(b) F.S.

Rosters: A current roster of all unit owners

and their mailing addresses,

unit identifications, voting certifications,

and, if known, telephone numbers.

Emails: The association shall also maintain a list of email addresses, for those consenting to receive notices by email >> Revocable!

New Law – Directories! Phone numbers ok

until the owner says no

Accounting records for the Association, include but are not limited to:

A Current Account AND a Monthly, Bimonthly, orQuarterly statement for each unit, which designates:

Name of the unit owner

Due date and the amount of each assessment

Amount paid upon the Account

Balance due.

Catch All: All other records of the association not specifically included in the foregoing which are related to the operation of the association.

These official records for the association shall be maintained within the state for at least 7 years… with exception ballots, proxies and related voting material still only kept for 1 year.

Condos/HOA’s – Respond within 10 Business Days

Up to 45 miles away

Internet access OK

HOA’s - $0.25 per page

$20/hour for staff

Rules can be adopted

718.111(12)(b)

The following records are NOT accessible bymembers of an Association:

Any record protected by theLawyer-Client privilege asdescribed in s. 90.502

AND any record protected bythe work-product privilege.

The following records are NOT accessible by members

of an Association:

Information obtained by an association in

connection with the approval of:

lease

sale

other transfer of a unit

The following records are NOT accessible by members of an Association:

Personnel records of association or

management company employees, including,

but not limited to, disciplinary, payroll,

health, and insurance records.

For purposes of this subparagraph, you CAN

view certain employment agreements.

The term “personnel records” does NOT include written employment agreements with an association employee OR management company

Budgetary or financial records that indicate the

compensation paid to an association employee.

NO - Social security numbers,

driver’s license numbers,

credit card numbers,

e-mail addresses (if consent to

receive email notice is not

provided),

telephone numbers,

facsimile numbers,

emergency contact information,

Other than as provided to fulfill the

association’s notice requirements.

Contracts and Bids

Any contract, lease, declaration, or agreement for operation, or management of a Condo Association may be cancelled by unit owners (other than developer) AFTER turn-over.

Approval requirements depend on number of condominiums and percentage ownership.

718.302.FS

718.3026(2), F.S. – the Association MUSTobtain competitive bids for any contractexceeding 5% of total annual budget >includes reserves

NOT required to accept lowest bid

All bids must be kept for 7 years

for condominium

NOT required to obtain bids for

1. Contracts with employees of association

2. Contract for attorney, accounting, architect

3. Community association manager

4. Timeshare management first

5. Engineering

6. Landscape architect services

7. Emergency situation

8. If only one source in county for products/services

718.3026(2), F.S.

If one or more of the Directors is financiallyinterested:

Requires 2/3 approval of the directors present

Must be disclosed at next regular or special meeting of the members

subject to cancellation by majority vote of members present

**617.0832: 1) Disclosure; 2) Terms are Fair and Reasonable

718.1255(1) – A dispute is any disagreement between two or more parties that involves:

Authority of the Board under 718 or the Association documents to:

Require any owner to take any action,

or not take any action, involving that

owner’s unit or the appurtenances thereto;

Alter or add a common area or element;

718.1255(1) – A dispute is any disagreement between two or more parties that involves:

The failure or a governing body, when required by this chapter or an association documents, to

1) Properly conduct Elections

2) Give adequate NOTICE of

meetings or other actions

3) Properly conduct meetings; or

4) Allow inspection of books and records

718.1255(1) – the following disagreements are NOT disputes pursuant to Chapter 718 if they primarily involve:

1) Title to any unit or common element

2) Interpretation or enforcement of any

Warranty

3) The levy of a Fee or Assessment

4) The collection of assessment levied

against a party;

718.1255(1) – the following disagreements are NOT disputes pursuant to Chapter 718 if they primarily involve:

5) The eviction or other removal of a tenant

from a unit

6) “Alleged” breaches of fiduciary duty

by one or more Directors;

7) Claims for damages to a unit based upon alleged failure of the association to maintain the common elements or condominium property.

If the disagreement IS a dispute, the aggrievedparty must first pursue mandatory nonbindingarbitration or mediation of dispute prior topursuing claim in state or federal court.

All parties can agree to mediation or arbitration, and may refer a dispute to mediation at any time.

Arbitration decisions and mediation settlements may be enforced in state or federal court.

If the disagreement IS NOT a dispute, the aggrieved party may immediately pursue legal action in state or federal court.

Arbitration decisions available online at: http://www.myfloridalicense.com/dbpr/lsc/

The “aggrieved party” must make written offer

of Pre-suit mediation for the following

disputes if the dispute involves:

1) Use of, or changes to,

parcel or common areas

2) Covenant enforcement disputes

3) Amendments to association documents

4) Meetings of the board and committees

5) Membership meetings

(not including election meetings)

6) Access to official records.

Recipient has 20 days to respond and agree tomediator

If NO response, implied refusal to mediate andaggrieved party may immediately file in state orfederal court and attorneys’ fees and costs are notrecoverable by refusing party if successful

• Any meeting at which a proposed annual budget of an association will beconsidered by the board or unit owners shall be open to all unit owners.

• Notice. 14 day notice must be mailed or electronically transmitted to eachunit owner along with a copy of the proposed budget. The proposedbudget must include a reserve schedule with reserves shown as fullyfunded.

• An officer or manager of the association, or other person providing noticeof such meeting must execute an affidavit evidencing compliance with thenotice requirement and must file the affidavit among the official records of

the association.

Reserve Accounts. In addition to annualoperating expenses, the budget shallinclude reserve accounts for capitalexpenditures and deferred maintenance.A members meeting and vote is requiredto reduce reserve account amounts oruse the reserve funds for a DIFFERENTpurpose.

HOA’s >>> Check your Documents and whether Developer established Reserves.

Many associations struggle with high delinquency rates.

Result: Maintenance fees stay high , paying members are supporting delinquent members, and common amenities suffer.

Board Members Face:

• Complaints, • Budget Issues, • Stress of Tracking Foreclosures; and • Bankruptcies.

Collection Process (step by step):

•Invoices and Courtesy Reminders by the Association

Attorney Actions:

• Notice of Intent to Lien• Claim of Lien and Notice of

Intent to Foreclose• Lien Foreclosure• Foreclosure Sale• Rent, Sell, or Deed in Lieu of Foreclosure• Push Banks to Foreclose Without Delay

AVOID THE FOLLOWING:

• Doing your own collections.• Fair Debt Laws

• Recording your own liens.• Unauthorized Practice of Law

• Avoid Inactivity!• Liens Expire (Condominiums)• 12 Month Window to Collect

New Law – Abandoned Units

I will be happy to answer any questions you may have or meet with you to address any concerns to tailor procedures and forms to meet your Association’s particular needs. Thank you for your time!

Richard DeBoest, Esq.239.333-2992/ rdeboest@gadclaw.com

Goede, Adamczyk, DeBoest, & Cross, PLLC2030 McGregor Blvd.

Fort Myers, Florida 33901**The foregoing is not intended to be legal advice or establish an attorney/client relationship.

Every matter is fact specific and you should seek counsel from a Florida Licensed Attorney.