There’s a lot that goes into my job as an attorney working in condominium and HOA law. Each week, I working on my current cases, keep abreast of the changes in the law, advocate for legislative reform, work on the Condo Craze Radio Show and write a blog each Monday. Without a doubt however, my favorite part of what I do is teaching and meeting everyone who cares enough to learn the law at our state-wide educational seminars.
Florida law provides that condominium and HOA directors must get certified within one year prior to getting elected or appointed to the board or within 90 days of actually getting elected or appointed to the Board. If not, they are technically off of the board. They can do so in one of two ways. The first way is what I call the chicken’s way out and quite frankly is an embarrassing loophole in the law. The law actually allows you to sign an affidavit which basically states that you have read your association’s governing documents and that:
“he or she will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.”
Honestly, this is ridiculous. Many of you have illegal provisions in your governing documents. The state says you’re certified if you sign an affidavit that requires you to promise to uphold these provisions even if they are illegal and unenforceable. Worse yet, the affidavit does not even require you to read or even acknowledge Florida Statute 718 (the condo statute) or Florida Statute 720 (the HOA statute).
Thank heavens that the law provides that you can also get certified by taking a DBPR approved course. Originally, the law only required condominium directors to get certified. I fought hard to ensure that HOA members had the ability to get certified by attending these classes and am very proud of helping to pass legislation which did just that. I am also proud to say that I have taught the course to approximately 16,000 directors all across the state. At each class, not only do the attendees learn something, but I do as well. So do the attorneys in my firm. Your questions always help raise awareness to so many issues and often times you provide practical answers to what may seem like complicated issues. The bottom line is that we all learn from each other.
Whether the issue is budgets, reserves, insurance, year-end financial reporting, your fiduciary responsibilities as board members, the election process, foreclosures, suspension of rights, access to records, arbitration, mediation or even if the new laws that get passed each year apply in your association (the answer may surprise you), we really try to cover it all and a lot more.
The law is often times confusing, even for the attorneys that practice in this area every single day. As a result, a board member should be required to take a course before being placed in charge of a community that may have a seven figure budget. Wrong or illegal moves by a director or directors can wind up costing the association tens of thousands of dollars or more. Therefore, any board member who won’t simply attend a 2 hour class in order to get certified, and would rather wimp out and sign the affidavit, is simply not worthy of your vote. They certainly would not get mine.
I also often get asked if a director who “has been on the board for many many years” needs to become certified. In all candor, that’s the first person that I want to take the class. I cannot tell you how many times I tell someone that their way of doing things violates Florida law. Instead of acknowledging their error and taking my advice, I typically hear “but that’s the way we have been doing it here forever.” Just because you do something a certain way for a long period of time does not make it legal or even right. The condominium and HOA laws have undergone extensive revisions over the last few years. In fact, much of these new laws made certain actions of directors criminal. I would think and hope that a director would want to know what type of illegal activity could land them in prison.
The job of a condominium or HOA director is an awesome responsibility. I also understand that it’s a job that does not pay a salary. The fact that you don’t get paid should not impact your decision however to take a class to learn the law. At the end of each seminar I typically hear that directors had no idea that certain laws even existed. On the flip side I also hear from non board members that they had no idea just how much there was to know about being a board member and that they have more compassion and understanding about those who serve the community.
For the moment, education is not mandatory for board members. There is a thought process out there that says that if we force board members to take a class, fewer people would run for the board. I doubt that. Most board members who care enough to donate their time, care enough to learn the laws and stay out of trouble. I for one would love to see education a necessary prerequisite to board membership.