By: Harris B. Katz, Esq. Special to the Boca and Delray newspapers
Q: Are new board members of condominiums and homeowner’s associations (HOA) required to obtain a certification?
J.M., Boca Raton
A: Many associations have recently held their annual elections. This means that there are a lot of individuals recently elected who have not been properly certified as required by Florida law. Since 2013, all new board members need to be certified to serve on their board. If a board member fails to comply with this requirement within 90 days of election or appointment, they are suspended from service on the board until they do so. Even though board members are unpaid volunteers who serve their community, they still undertake important responsibilities. In short, a director on a board has the obligation to enforce the governing documents in accordance with Florida laws, adopt budgets, maintain common areas and oversee all aspects of your community, whether it is a condominium or a HOA. Even if an association has a property manager to assist it, along with your association attorney, Florida law requires that directors be familiar with applicable laws, accounting rules and the articles, bylaws and other governing documents for their community.
As such, Florida law requires that all new directors, within 90 days of being elected, either file a certificate declaring they have read the association’s governing documents or complete an approved education course. Although you can do either under Florida law, actually attending a certification course is the recommended option. Attending an approved training course allows you to learn from a qualified attorney who can answer questions and help you through the process. By just reading through your documents, you may be in technical compliance with the law, but you will likely miss out on having everything put in context for you.
Also, as new board members come to realize very quickly, Florida’s association laws are extremely complex and are continually changing. Understanding your fiduciary duties and board member requirements for condominium and HOA boards is critical for new directors. There are law firms and property management firms that offer the certification course for board members, some free of charge. My firm regularly offers free board certification courses. For more information, please feel free to contact my office at 561-368-9200.
Q: How often should a condominium update its governing documents?
A.S., Boca Raton
A: As we approach the end of the year, it is important to take a look at the current documents governing your association, including the Declaration and By-Laws. Because condominium and HOA laws are updated and change regularly, whether through amendments to Florida Statutes or new case law, it is important to have your association attorney do regular reviews of your governing documents to make sure that your association is not running afoul of Florida law.
Associations operating under older, potentially outdated documents will likely spend more each year on legal fees and run into more legal problems than those with newer, updated documents. This is because, if an association is following documents that are ambiguous and may be contrary to current law, it is opening themselves and the association to potential liability that can come by way of one of Florida’s regulatory divisions or even by a disgruntled owner.
Frequently, flawed association documents will even impact associations that are newly turned over from a developer. Developer-prepared documents often have boilerplate language that has never been reviewed by the developer’s attorney to comply with current law. In addition, these developer-prepared documents are prepared in a way that benefits the developer, not the owners. So, whether you live in a community that is a decade old or a newly constructed one, an association should always have its attorney review the governing documents to determine whether they should be updated or not.
Harris B. Katz, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: email@example.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, PLLC. 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.