Hurricane Preparedness
Overview
Every community association (condominiums, co-ops, and HOAs) in Florida should establish and distribute emergency contact information, evacuation instructions, and other vital information as part of a Hurricane Preparedness Plan for your association. This is particularly true for condominium associations that are along the coastline and in heavy flood zones. Ideally, this should be done annually in advance of hurricane season and approved at a Board of Director’s meeting. However, most associations have strayed away from this practice after several years of no (serious) hurricanes. In the unfortunate event of an emergency, the association is afforded specific emergency powers, which should be reviewed, as well. See Section 718.1265,Florida Statues.
Insurance
It is important for the Board and management to review and understand the community’s property insurance policy. Specifically, take note and understand the policy’s hurricane deductible. Hurricane deductibles can range from 1% – 15%, of the insured value of the property. This means that, if the insured value of the property is $5,000,000, and the hurricane deductible is 5%, and a hurricane resulted in a loss to the property – the association would need to pay a $250,000.00 deductible. Not many communities have this sitting around in operating or even reserve funds, so it is important to discuss how this deducible would be paid in the event of a major hurricane casualty.
Association Planning & Preparation
The following are some of the several considerations for the Association in preparing for a hurricane:
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Tree Trimming and Other Landscape Maintenance
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Hurricane Shutters and secure association property (propane tanks, irrigation systems off, secure pool furniture, etc.)
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Resident Emergency Contact Information
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Disabled Residence Assistance
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Distribute and make available Owner Routine Preparedness information
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Unit Access
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Pictures / Videos of Property – Before AND After
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Official Records Storage
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Back up Electronic data (if applicable)
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Hurricane Disaster Response Contracting
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Emergency Board / Community Meeting
Of course, this is a very brief outline of some of the issues that should be considered. There is only so much planning that an association can do for a natural disaster like a hurricane – but we do believe that every little bit helps. Stay safe and offer assistance to your neighbors when you can.
Board Meetings & Minutes
As volunteer board members – charged with the responsibility to maintain and operate a large condominium association – it can be hard to fi nd time to fully review the rules and requirements for some of the more administrative functions of the Board. We have compiled a list of some of the common issues we have seen over the years, as it has been our experience that a little clarification on these issues can go a long way.
Board Meetings
As your condominium is not a state-run governmental entity, Florida’s Sunshine in Government Act does not apply to your association. However, the Florida Condominium Act (Florida Statute Ch. 718) contains its own “sunshine” requirements. In almost every instance (except for legal/personnel matters), it is best to govern your association out “in the sunshine”.
Meetings of the board are defined as any gathering of a “quorum” of the board where association business is “conducted”. The first relevant point is that a quorum must be present. So, unless you have a three-person board, two directors can sit down and discuss association business without violating the sunshine requirements. Of course, without a quorum, no actual business or decisions could be made on behalf of the board – but discussion would not be a violation.
One of the more frequently debated topics is what constitutes the “conduct” of business. Often, an association’s board members will meet under the auspices of “planning workshops” or “executive sessions”, and believe that a quorum of the board can hold these meetings in private (and out of the sunshine), as long as no binding votes were being taken.
However, this is a misinterpretation of the law; and allowing boards to conduct business this way would result in boards making decisions in private “executive sessions” and simply ratifying the decision at the public board meeting without allowing its membership to participate in the discussion.
Notice of Board Meetings – Condominiums
All owners have the right to attend and speak at meetings – however, this right cannot be realized if the owners do not know when or where the meetings are going to be held, or what topics will be discussed. Section 718.112(2)(c) of the Florida Condominium Act states that notice of all board meetings must specifically identify agenda items, and must be posted conspicuously on the condominium property at least 48 continuous hours before the meeting, except in an emergency. Written notice of any board meeting at which non-emergency special assessments, amendments to rules regarding unit use, and/or the association budget will be considered must be mailed or delivered to the owners AND conspicuously posted on the condominium property not less than 14 days prior to the meeting. There are other requirements for meetings at which assessments will be levied, but we can address those in more detail should the issue(s) arise in the future.
Meeting Minutes
The drafting, approving and keeping of meeting minutes is one of the more commonly misunderstood aspects of the board’s administrative responsibilities. The purpose of meeting minutes is to record what was done, not what was said. If there are specific reports or factual references that the board believes should be included with the minutes, they should be attached as an appendix to the meeting minutes, or as a separate resolution. Please do not misunderstand, the Secretary of the Board (or whomever is designated to prepare meeting minutes) should take thorough notes of the discussions and actions taken at the meeting, which will be referenced when the minutes are being prepared. However, every detail contained in those notes should not be included in the minutes. Often, a board member or property manager will record the meeting, and this can be used as a reference when preparing the minutes, as well. Note: any recordings of meetings may be considered as part of the official records, at least until the minutes of the meeting recorded are approved.
A typical set of meeting minutes should reflect the following: (i) date, time, and place at which the meeting was called to order; (ii) the presiding office; (iii) establishment of a quorum (with attendees listed by name); (iv) proof of proper notice for the meeting; (v) disposal of unapproved minutes from previous board meeting; (vi) summary of reports given to the board (one or two sentence summary is sufficient – or if the report is written, it can be appended to the minutes); (vii) unfinished business; (viii) new business; and (ix) adjournment.
When an item of board business is put to a vote, the person making the motion should be identified in the minutes, as should the name of the person who seconds the motion. The exact wording of the motion should also be included in the minutes. However, the arguments for or against the motion are not typically included in the minutes. The Condominium Act does require that the vote of every director be recorded in the minutes, and approved minutes of board meetings must be kept for seven (7) years, as part of the Official Records of the association. Unapproved minutes are not considered part of the association’s Official Records.
Until the minutes are approved by the Board, they should not be distributed to the membership or produced pursuant to an Official Records request. This could lead to unnecessary headaches for the association in the event of future litigation or insurance claims. Furthermore, once the meeting minutes are approved – thus, becoming an Official Record – the association may decide to discard the recording of the meeting, or may decide to preserve it. If the recording of the meeting is preserved, it will be considered a part of the association’s Official Records.
Of course, this is a very general review of the foregoing issues, and subtle nuances and exceptions may apply in certain situations. The administrative responsibilities of your Board are essential and fundamental to the effective and lawful operation of the Association. To that point, should you have any questions or require any guidance regarding this matter, please contact our firm.
Fire Sprinkler Retrofitting
Florida law requires residential condominium associations to upgrade its non-compliant fire sprinkler/safety system,
November, 2016. As Association Board members may know, Florida law requires residential condominium associations to upgrade its non-compliant fire sprinkler/safety system, unless the Association’s members vote to forego retrofitting its fire sprinkler system. This vote must be held before December 31, 2016. If the Association does not obtain the approval of the majority of the entire voting interests to forego the retrofitting of the fire sprinkler system, by December 31, 2016, then the Association will be required to initiate an application for a building permit for the required retrofit installation, demonstrating that the Association will become compliant by December 31, 2019.
Section 718.112(2)(l), Florida Statutes, allows an Association to vote to forego the retrofitting of its fire sprinkler system upon the approval of a majority of the entire membership. The vote may be undertaken at a duly-noticed meeting of the membership, or by the written consent process in lieu of holding a membership meeting. If the Association holds a membership meeting, fourteen (14) days’ advance written notice must be sent to the entire membership by mail or hand-delivery. Importantly, if the vote is successful, then the vote to forego the retrofit is only considered effective when a Certificate attesting to the vote is recorded in the public records of the county where the condominium is located.
Section 718.112(2)(l), Florida Statutes, allows an Association to vote to forego the retrofitting of its fire sprinkler system upon the approval of a majority of the entire membership. The vote may be undertaken at a duly-noticed meeting of the membership, or by the written consent process in lieu of holding a membership meeting. If the Association holds a membership meeting, fourteen (14) days’ advance written notice must be sent to the entire membership by mail or hand-delivery. Importantly, if the vote is successful, then the vote to forego the retrofit is only considered effective when a Certificate attesting to the vote is recorded in the public records of the county where the condominium is located.
In addition, if the vote to forego the retrofit is approved by the majority of unit owners, the Association must also send written notice to the entire membership of the outcome within thirty (30) days of the date the vote is held – which must be evidenced by an affidavit executed by the person sending out the notice, and filed in the Association’s Official Records. Finally, the Association must also report the results of the vote and recording of the certificate to the Division of Florida Condominiums, Timeshares, and Mobile Homes.
Again, in order to avoid the expense of retrofitting the Association’s fire sprinkler system, a majority of owners must vote in favor of foregoing the retrofit by December 31, 2016.
Please let us know if we can assist you in addressing any of these issues.