The Replacement Dog

In one case I handled, an owner had a Border Collie (a breed that averages between 30-45 pounds) in a community with a 25-pound weight limit for pets.  The association asked us to begin legal proceedings against this owner to enforce the weight restriction.  The litigation began to drag on for some time, with each side trying to be top dog (I warned you).  In the midst of the legal wrangling, the dog in question expired.  In one of the more unusual tasks I have performed in my career, I was asked by the client to call the veterinary clinic to confirm that the dog had, in fact, passed to the great dog park in the sky.  He had, and I thought I saw a sad, but mutually agreeable outcome to the lawsuit within our grasp.

I was wrong.  In less than a month, the owner had gone out and bought a brand new Border Collie.

Now we were really stuck.  The case would have to go all the way through to a final judgment and everyone knew it.  This owner’s wife, distraught over her husband’s dogged determination to thwart the association’s efforts to enforce its rules, left him.  He fell behind on his bills, ate through his savings while paying his attorney’s fees, and was in jeopardy of going into mortgage foreclosure.  The owner became depressed and this case was about to get a lot hairier.

The Case Goes to the Dogs

While pets are not people, and thus, cannot trigger the anti-discriminatory policies of the Fair Housing Act or the various state and federal agencies set up to ensure equal housing rights, their owners are.  If the owner has a disability they may be entitled to a “reasonable accommodation” to allow that person to live in the community.  In case you are not already familiar with the concept, a large body of law requires associations to make “reasonable accommodations” for those with disabilities.  What constitutes a “reasonable accommodation” is exceptionally broad and is better left for another article, but suffice to say that under the right circumstances just about anything could qualify.  All one has to have is a legally recognized disability.

Depression is a legally recognized disability, so when our local dog lover got a psychiatrist to diagnose him as depressed, the Association’s case turned into a real dog.  To treat his depression, the owner’s doctor prescribed (you guessed it) a companion animal to improve his mood.  As a result, the association had to make a reasonable accommodation by allowing an exception to its restriction regarding pet weights.  Doing otherwise could have been considered discrimination against the disabled and invited various state and federal authorities to pursue the association like a pack of wild dogs.  Needless to say, the case settled rather quickly at that point, though the association was able to recover a few bones for its attorney fees.

Kibble for Thought

Before beginning a full-blown lawsuit to enforce against an owner with pets, be aware that the facts can turn rather quickly.  Had the owner in our little story not become depressed, the association could have rolled over and played dead and still won the case.  But, discrimination claims require a community to defend against the near limitless resources of the government and to put up with the political and social embarrassment of being labeled as a bigot.  Most would agree that a board would have to be barking mad to take on that fight unnecessarily.

But if you think this case is an extreme example, think again.  Other examples of strange pet cases abound.  For instance, did you know a pony could be considered a pet and acceptable to live inside a condominium unit?  Or that a 55 and older community with multiple accommodations for the disabled (ramps, wheelchair lift for the pool, automatic doors, etc.) could discriminate against people with disabilities when it tried to enforce a pet weight restriction against an owner with a dog accused of knocking over other residents?

The moral of the story: while pet restrictions are common and you may even be considering amending your documents to add one, they can be difficult to enforce.  The better option is to attempt to enforce against the resulting harm caused by the pet.  For example, if the dog barks excessively pursue the owner for noise violations.  If they fail to pick up after the dog, get them for dirtying up your common areas.  Obviously, every case is different, so consult with your association’s attorney before determining your course of action, and you will be sure to remain top dog in your community for years to come.

However, what is UPL and how can managers be sure to avoid it?  Currently, the Florida Bar’s UPL Committee looks at the following activities to determine if a manager has engaged in the unauthorized practice of law:

1.  Preparation of a certificate of assessments due once the delinquent account has been turned over to the association’s attorney.

2.  Preparation of a certificate of assessments due once a foreclosure against the unit has commenced.

3.  Preparation of a certificate of assessment due once a member disputes in writing to the association the amount alleged as owed.

4.  Drafting amendment (and certificates of amendment that are recorded in the official records) to a declaration of covenants, bylaws, or articles of incorporation when when such documents are to be voted on by the members.

5.  Determination of the number of days to be provided for a statutory notice.

6.  Modification of limited proxy forms created by the State.

7.  Preparation of documents concerning the right of the association to approve new prospective owners.

8.  Determination of affirmative votes needed to pass a proposition or amendment to recorded documents.

9.  Determination of owners’ votes needed to establish a quorum.

10.  Drafting of pre-arbitration demands.

11.  Preparation of construction lien documents (such as a notice of commencement, lien waivers, etc.).

12.  Preparation, review, drafting, and/or substantial involvement in the preparation or execution of contracts.

13.  Identifying, through review of title instruments, the owners to receive pre-lien letters.

14.  Any activity that requires statutory or case law analysis to reach a legal conclusion.

What are these areas of inquiry based on?  What authority does the Florida Bar have to determine whether something is the unauthorized practice of law?  In 1996, the Florida Supreme Court issued an advisory opinion in The Florida Bar re: Advisory Opinion – Activities of Community Association Managers, 681 So.2d 1189 (Fla. 1996) holding that ministerial actions taken by managers which did not require significant legal expertise and interpretation would not constitute UPL, but managers would violate this prohibition by doing any of the following:

1.  Preparing a Notice of Commencement.

2.  Drafting a Claim of Lien.

3.  Drafting a Satisfaction of Lien.

4.  Determining the timing, method, and form of giving notices of meetings.

5.  Determining the votes necessary for certain actions by community associations.

6.  Addressing questions asking for the application of a statute or rule.

7. Advising associations whether a course of action is authorized by statute or rule.

Consequently, the Bar, the organization responsible for monitoring those who practice law in the State of Florida, was given the obligation of policing both lawyers and non-lawyers alike to make sure that this ruling was being applied.

 So, with such an exhaustively long list of things a manager is not allowed to do, what is left for a manager to do?  What is considered safe activity?  How can a manager simply follow the law and not be accused of practicing it?  Unfortunately, the distinction is not always clear.  Generally, practicing law involves appearing before courts, giving legal advice, and preparing legal documents like contracts, pleadings, affidavits, etc.  Obviously, many of these activities overlap with a manager’s regular duties.  Certain activities, like bookkeeping and task management related to an association’s vendors should be no problem, but as soon as a manager begins negotiating a contract, interpreting an association’s documents, or taking any action which an attorney might otherwise handle, a flag should go up and that manager should contact the association’s legal counsel to determine whether they need the assistance of a licensed attorney.

What about directors and officers, you ask?  They, too, are subject to these same requirements.  If your association has been recording liens without using an attorney, for example, then your board may have engaged in the unauthorized practice of law.  Again, if in doubt, contact an attorney for advice.  While directors may not have to worry about losing a professional license like a manager would, they may be subject to fines and other penalties for the UPL and any actions related to that UPL may be deemed void and unenforceable, meaning you could end up spending a lot more to fix the situation after the UPL than you would have spent by contacting the association’s attorney first.

We can help you with the preparation of meeting notices, give opinions and guidance on any topics which may affect your community’s corporate existence, and even attend your meetings with you to render assistance as the need arises.  While we always recommend hiring a competent, qualified LCAM (licensed community association manager) to help with most of a community’s day-to-day operations, we also understand that some communities prefer to operate on their own or that sometimes questions come up that even an LCAM cannot answer.  That is where Community Association Law Group can help. We are experienced at working with both boards and managers to navigate the often treacherous waters of corporate management.

If you would like further information please feel free to either fill out the form at the bottom of this page or give us a call at 855-Ask-CALG (855-275-2254).

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Our staff of experienced attorneys have reviewed and negotiated hundreds of contracts on behalf of our condominium and homeowners association clients.  Whether it is a management agreement, a bulk cable contract, or a landscaper’s services agreement, chances are we have seen them all.  We know the types of clauses you want to see in every agreement and the ones you should avoid.  We also know about provisions that are illegal or unenforceable, and ones that are mandatory to make a contract binding and enforceable.  We can also help you when it comes to bargaining for a better rate, often by helping you to step outside of the negotiations and thinking “outside the box.”  Your community deserves legal representation when it comes to negotiating the best deal on your contracts, and Community Association Law Group is here to help you with all of your community’s legal needs.

For more information or if you have any questions, feel free to contact us through the form below or call us at 955-Ask-CALG (855-275-2254).

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Our staff of experienced attorneys have rendered hundreds of opinions on virtually every aspect of the law affecting community associations.  Many of these opinions are later converted into articles which appear right here on our website, so you can often find the answer you are looking for FREE!  But if your question is a little more specific or you need something in writing tailored specifically for your association, we can help there, too.  We will review any documents and applicable legal authority and render a concise opinion on your topic while staying within your association’s budget.

For more information, feel free to use the contact form at the bottom of this page or call us directly at 855-Ask-CALG (855-275-2254).

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Our lawyers are experienced at dealing with issues such as the Marketable Record Title Act (MRTA) and creating proven amendments to your documents that will keep your association in conformity with the law for years to come.  Whether you need a simple amendment to your bylaws or a comprehensive restatement of your entire declaration, we can help.

 For more information, simply use the form at the bottom of this page or call us at 855-Ask-CALG (855-275-2254).

Turnover, or the point at which a community transitions from developer control to being controlled by the members of the association, can be a confusing time for community associations.  We can help by attending meetings, guiding you through the steps necessary to ensure that your community has obtained all of the documents and other materials the developer is obliged to provide at turnover, ensuring that deadlines are met, and so forth.

We also have years of experience dealing with construction defects.  If you discover your community is suffering from defective construction, remember: time is not on a community’s side.  The defects usually just get worse and cause other damage, and your legal rights may expire more quickly than you would imagine.  Whether the defects date back to the time of developer control or are the result of bad work performed by a contractor, now is the time to take action and protect not only your home, but your investment.

If you have any questions or would like more information, please feel free to use the contact form at the bottom of this page or call us at 855-Ask-CALG (855-275-2254).

Many associations struggle with collecting delinquent assessments, but it is a necessity.  Assessments are usually the only source of income for an association, and any owner’s failure to pay requires all of the other owners to pay that much more to cover the gap this creates in the community’s budget.  So what is a good strategy for each association to adopt  to boost collection rates as high as possible?

1.  Make your collection process automatic.

One of the easiest problems to avoid in collecting association dues is the issue of selective enforcement.  Associations often give greater deference to owners that they like or who they feel sympathy for, and eagerly pursue owners they see as trouble makers.  Unfortunately, this approach creates two problems.  First, it sets up a legal defense that the rules of the Association are not being applied uniformly to all owners.  Second, it promotes the idea that if you have a good enough excuse and stay out of trouble the association will let you slide on paying assessments.

Instead, every association should act dispassionately and automatically with regard to collecting assessments.  As soon as an owner becomes delinquent, action should be taken.  No owner’s account should be treated differently from another’s just because he lives next door to the president or is a really nice guy.  Moreover, the association should not slow in its march towards resolution.  If the owner misses deadlines to repay, the next step in the collection process should be taken without delay until the assessments are paid or the property is foreclosed.  This avoids the defense of selective enforcement and gives everyone in the association the message that they must carry their part of the burden or sacrifice the privilege of owning property in the community.

2.  Create policies.

Part of being automatic with your collection process is knowing when to take the next step and what that step should be.  Some of the collections process will be in your association’s governing documents, like when you can charge late fees and interest and how much those amounts can be.  Other requirements are contained in the Florida Statutes, like how much notice must be given before filing a lien or a lawsuit to foreclose on the property.  An attorney can help guide you through deciphering those provisions and alert you to any conflicts between your documents and the statutes.

But what about all of the other stuff that is not contained in the documents or the statutes?  How long should an association wait before referring a matter to the attorneys?  Should the association send reminders before taking legal action?  If so, how many and spaced out over how much time?  These questions will usually be left up to the association to decide on its own, so why not create a formal policy?  Generally, the board has the power to adopt rules (as opposed to amendments to the covenants) by a simple vote of the directors.  So, why not create a formal set of rules outlining how collections matters will be handled which you and your successors can follow in every instance when someone becomes delinquent?  Formal rules will make it easier for an association to stick to a collections policy because it is written as a requirement, it is available for everyone to see so nobody can legitimately claim surprise, and they will pass your intent forward to future board members so that your policies will continue to be enforced long after you step down from the board.

3.  Follow through.

Finally, another spot where a lot of associations fail in their collection efforts is on the follow through.  If your community threatens to take legal action against an owner it needs to actually see that action through to the end, be that foreclosure or payment by the owner.  Too many associations stop after sending a demand and filing a lien against the property.  Liening a property is almost useless on its own without some sort of legal action to foreclose that lien.  Otherwise, the lien can sit in the public records until it expires or becomes so remote in time that a judge refuses to enforce it.  Thus, an association should always follow through on its foreclosure powers in a timely manner if an owner continues to remain delinquent even after a lien is placed against their property.  Doing anything less merely creates an inconvenience to the owner and a wasted expense on legal fees for the association.

If the association’s hesitation on moving forward with a case results from fear of large legal fees, there are several services, such as Assessment Recovery Partners (ARP), which can assist associations by “purchasing” collections accounts, usually by paying off some or all of the delinquent assessments for a particular property and agreeing to pay all legal expenses associated with collection.  In exchange, the association gives the collection company the right to collect any interest or late fees on the account and the right to bid on the property at foreclosure auction.  These services are usually best for associations with large amounts of delinquent accounts who are in dire need of improved cash flow, but may be useful for communities in less dire financial straits, as well.

Conclusion

Improving you association’s collections is as simple as following three easy steps.  First, become automatic with your collection efforts.  Second, adopt policies and make them into official rules for your association to follow.  And finally, follow through with your collection efforts, never stopping short of payment by the owner.  Following these steps should put your community on the path to improved collection rates and ease the burden on all other owners who regularly pay their assessments as they should.

This article has been adapted and featured on habitatmag.com

Historically, the originator of a debt was not considered a debt collector under any federal or state law for purposes of either the Federal Debt Collection Practices Act (“FDCPA”) or the Florida Consumer Collection Practices Act (“FCCPA”).  That all changed last year, though, with the decision in Morgan v. Wilkins, 74 So.3d 179 (Fla. 1st DCA 2011).  In that case, a law firm attempted to sue a former client for failing to pay legal fees.  The former client counter sued for violation of the FCCPA.  The trial court dismissed the former client’s claim on the basis that the law firm was not a debt collector.  However, on appeal, the First District Court of Florida decided that the language of the FCCPA had evolved to the point that it now includes any entity to which a debt is owed.  In other words, if someone incurs a debt to someone else, the person to whom that debt is owed may now have to comply with FCCPA when trying to collect that obligation.

What does this mean for associations?  What about management companies?  It could mean that your own practices in collecting assessments now must comply with the at least the FCCPA, if not its federal counterpart.  For more information on how to comply with these requirements, contact your association’s attorney or use our “contact” form to inquire about how you can become a client of Community Association Law Group.

Knowing the Risk

The first thing to do is identify whether your community is even at risk.  The simplest way to determine if there are any sex offenders living near you is to visit the Florida Department of Law Enforcement’s sex offender registration database at http://offender.fdle.state.fl.us/offender/homepage.do .  There you will be able to perform a search of sex offenders by name, or those living within a designated radius of your address, near your church or school, or by E-mail address or instant messaging name.  Results can be provided in either list form or on a map to help you determine where these individuals reside and the actual proximity to your house or neighborhood.

Once you have identified whether there are any offenders in your area (most of us will probably be surprised to find out just how many are), the next important step is to review the individuals’ records to see what crimes they actually committed.  In reviewing your results, you will note that sexual offenders’s pictures have blue frames while sexual predators offenders have red frames.  You will also note that the vast majority of the results your receive will likely be individuals with blue frames (sexual offenders).  What is the distinction?

Generally, sexual predators are those who have been convicted of the most serious of offenses, such as rape. Pursuant to Florida Statute Section 775.21, sexual predators have been convicted of a capital, life, or first degree sex felony or has been civilly committed (i.e., sent to a mental institution) under the Jimmy Ryce Act.  Sex offenders, on the other hand, are often convicted of much lesser crimes.  In reviewing records, one notable trend are the number of sex offenders who are convicted of crimes which, in essence, amount to engaging in some form of sexual activity with a minor.  Unfortunately, in many of these instances it appears that the crime occurred when the individuals were, themselves, just over the age of consent (i.e., late teens to early twenties), meaning that in many cases this may have simply been a matter of dating someone too young whose parents did not approve.

As such, the threat posed by anyone listed as a sexual predator is typically much more significant than that of a sexual offender. Nevertheless, some sex offenders may have been convicted of crimes as serious as kidnapping a minor, so it is important to review an individual’s convictions closely.

Now that you know, what can you do?

Unfortunately, there is not a great deal an association can or should do when it determines that a sexual offender lives in the neighborhood or nearby.  While an association does have an obligation to protect its members from reasonably foreseeable harm resulting from criminal activity, that duty must be balanced against the individual rights of the sexual offender.

The first idea often suggested is using a mailer, community newsletter, or door-to-door information campaign to let people know about the sex offender living in the neighborhood.  While in some instances, the sex offender may be required to do this on his or her own, the association should probably avoid this approach.  In an incident which made the news, a photograph of a sexual offender was inadvertently switched with one of an individual who was on probation for a DUI.  If something similar occurred with a record your association found online, and you began a campaign against a homeowner based on bad information, your association could face an avalanche of lawsuits from the wrongfully targeted owner.  Moreover, whether your information is accurate or not, your actions could backfire, drawing negative attention to your community and driving down home sales and rentals.  After all, who wants to live in a neighborhood with a sex offender/predator?  Indeed, some who have tried to drive out a sex offender have even faced criminal charges themselves for violent acts and even arson after taking things too far, and your association does not want to be responsible for inciting that kind of behavior.

Instead, the approach that the Community Association Law Group advises is to simply notify your members of the existence of the Florida Department of Law Enforcement’s Sexual Offender Database and allow your members to take it upon themselves to review the website and determine if a sexual offender is living in the area.  This eliminates the risk to the association, as all the association has done is advised people of the existence of publicly available information. This approach also helps to show that the association has taken steps to protect its members from the dangers of potential criminal activity.  Best of all, putting such a notice in your community’s regular newsletter means you can take these steps to protect your members with little or no additional cost to the association.