What’s the secret to a highly functioning community association? Host Donna DiMaggio Berger and Take It To the Board's producer, Claude Jennings Jr. look back on Take It To The Board’s 2023 season and revisit some of the most important conversations about community association living while answering listener questions.
Most new communities are devoid of all but the most basic policies and over the years far too many boards fail to anticipate which policies and protocols can make their jobs, as volunteers, easier. Does your community have the following policies in place and, if not, why not?
Donna and Claude examine the best policies and protocols for your community association spiced up with real-life questions from Take It To The Board’s engaged listeners. Donna also opens up about her journey into condominium law and finding balance at Becker, while Claude shares the fulfilling experiences that carved his path in media and podcasting. Listen now to learn how to maintain a community that is not only functional but harmonious.
Conversation Highlights Include:
Top Episodes of 2023
What’s the secret to a highly functioning community association? Host Donna DiMaggio Berger and Take It To the Board's producer, Claude Jennings Jr. look back on Take It To The Board’s 2023 season and revisit some of the most important conversations about community association living while answering listener questions.
Most new communities are devoid of all but the most basic policies and over the years far too many boards fail to anticipate which policies and protocols can make their jobs, as volunteers, easier. Does your community have the following policies in place and, if not, why not?
Donna and Claude examine the best policies and protocols for your community association spiced up with real-life questions from Take It To The Board’s engaged listeners. Donna also opens up about her journey into condominium law and finding balance at Becker, while Claude shares the fulfilling experiences that carved his path in media and podcasting. Listen now to learn how to maintain a community that is not only functional but harmonious.
Conversation Highlights Include:
Top Episodes of 2023
Hi everyone, I'm attorney Donna DiMaggio-Burger and this is Take it to the Board, where we speak Kondo and HOA. Today, we're having a special episode of the Take it to the Board podcast. I'm joined by our show's producer, claude Jennings Jr, and we're going to be going over some listener questions received over the last year, all of which involve typical problems and challenges associated with the Community Association lifestyle. Claude, I'm going to ask you to read those questions, is that okay?
Speaker 2:Oh, that's perfectly fine. Number one and number two. I feel like this is going to be one of my favorite shows because so often, like hosts, you know and you do a great job of this ask wonderful questions of the guest and pull out their expertise, but you also, you know, you know something when it comes to this, and so I'm looking forward to you sharing your expertise with everybody, and I may even throw in a few questions that I have myself.
Speaker 1:Please have at it. Have at it. I just want to mention, before we get started, that nothing's being said in today's episode should be construed as legal advice for our listeners. That's mainly for what I say, claude. I'm not sure they're going to tag you with that. You should always work with your association's attorney on your matters and your challenges. So before we get started, I did want to take a look back, claude, at our 2023 season, since we just received those statistics. We released 26 episodes, two per month. We're in the top half of all podcasts out there. We do have listeners in 29 countries, with the top five countries. Actually, do you want to guess what the top five countries were?
Speaker 2:Okay, so I'm going to assume that out of the top five, the United States is in there. So I'm going to then go let's go, let's go over, let's go over to Europe. I'm going to think, maybe, maybe the UK.
Speaker 1:Yep, you're in the right continent. You got two out of the five.
Speaker 2:Okay, so then there's probably more in Europe, but we'll leave it there at the UK. I'm going to go. I'm going to go China. We'll go and make no, okay, all right, I'll show you.
Speaker 1:Our top five countries, just to make this easy, is the North America you got one and Europe.
Speaker 2:Okay, there you go.
Speaker 1:Then our top five countries are US and UK. Canada has her to guess for the other three.
Speaker 2:Canada.
Speaker 1:Yep Got it. Two more countries in Europe, both of which are my ancestors, come from.
Speaker 2:Oh, wait a minute, I should know this.
Speaker 1:Let's have a look at the name on the podcast.
Speaker 2:Italy maybe.
Speaker 1:Italy. Okay, got it, dimashio Italy.
Speaker 2:And what would be the other one, germany?
Speaker 1:Okay, we had listeners in 29 countries, top five countries being US, canada, germany, italy and the UK. Miami's our most popular city in terms of listeners, followed by Fort Lauderdale, sarasota, orlando and this was the shocker Pompano Beach.
Speaker 2:Okay.
Speaker 1:All right.
Speaker 2:Shout out to.
Speaker 1:Pompano Beach Our top five episodes in 2023 in terms of downloads. Now, this is not the top episodes overall for the podcast, since we're in our third season, but the top episodes in 2023 were the art of negotiating the best telecommunication deal for your community with Marshal Kershoni. Remember the president at Community Cable Consultants.
Speaker 1:Right and then we had our 55 and older communities still in demand. What must be done to preserve your senior lifestyle? That was with Mark Friedman, my partner at Becker. The impact of construction next door on your community, with Katie Burkey, also a partner of mine, and if you recall, katie had that great conversation about women returning to work. Right, she had all those resources for new moms, which was great. The fourth most popular shout out to my better half it was celebrating the 50th episode with my husband, michael Berger.
Speaker 1:They'll be happy to know he's in the top five, but if I know him he'll want to know why he wasn't number one. And then the fifth was Guns, God and Gabb a constitutional analysis with my partner, jay Roberts. I have to say the Becker attorney's really turned out strong.
Speaker 2:Yeah, yeah, they're going no, really really good, and some of my favorites I mean just to throw some in were the episode we did on surveillance I thought that that was really really good and the drones.
Speaker 1:Yeah, I don't know what that says. I mean, I guess we were watching a lot of Netflix and streaming shows about surveillance and spy stuff, but you're right, those got a lot of buzz. So the title of today's episode is Practical Policies and Protocols, and I chose that because so many associations, claude, are putting out one fire after another, some of which could have been prevented in the first place if they had a policy or a protocol in place. When a developer builds a community, they turn it over. They really don't have a lot of policies and protocols in place, and that's for a reason because they're trying to move their inventory and they don't want anything to be a turnoff to a potential purchaser.
Speaker 1:So normally, when a community gets turned over to the owners and the developer is getting ready to depart, there's not a lot of policies and protocols in place. And I'm not talking about your average restrictions regarding parking. I'm talking about other types of policies, like an email protocol, maybe even a collections protocol, an election protocol, and we're going to talk about that today because, really, associations post turnover, these boards, have to fill in those gaps, working with legal counsel. So, with that being said, claude, do you want to kick us off with the first listener question.
Speaker 2:Yeah, let me jump into the mail back here. This comes from John. So John says I just wanted to say I love your podcast. Take it to the board. I find them really informative and the guests that you have on the podcast are really good, especially like the newest episode, eyes Everywhere.
Speaker 1:That's one of the ones that I say was one of my favorites yeah.
Speaker 2:Yes, and it was great. As a volunteer, as a volunteer board member in an HOA here in Florida, I find your topics interesting and can relate to what is being discussed. What kind of advice can you give to a volunteer HOA board that's basically dysfunctional? I've been asking about looking into property management for years, but the subject is often ignored or we seem to quickly move to another issue. I feel that the community is looking a little run down and could use some professional guidance. Take care for now, Donna, and keep the podcasts coming. That's from John.
Speaker 1:Well, john, I think Claude and I both want to thank you for being a listener of the podcast and for your kind words. The first question I'd want to ask Claude is what's driving the dysfunction on the board? Is it because they have maybe one board member, perhaps the president, or another officer who's dominating the others? Do they have absentee directors who are not carrying their weight? Are there factions on the board? It's a divided board in terms of everything, in terms of direction, in terms of priorities.
Speaker 1:Is managing the association too much for these volunteer directors, and would professional management help? Because one of the things that John seems to be indicating is we don't have professional management. We've brought it up, but it hasn't happened. I can tell you from experience that a lot of communities feel that professional management is too expensive, and yet when they try to manage, when they try to self-manage, it's not entirely successful either. So I think, in John's case, I would urge the board to sit down and find out if professional management might help with some of the shabby run-down appearance that he's talking about. I mean, he mentions that the community's looking a little run-down. So one of the other questions I would ask Claude is when's the last time that the board or the architectural control committee did a walkthrough. You know they do things. I live in an HOA. They're out there in their little cart.
Speaker 1:They go from house to house and I know this is the trope of so many serenite live skits. You know, in the place I'm not talking about, you know that the grass is a quarter inch too high. Talking about serious exterior issues that can drive down the property value in the community roofs that need replacement or cleaning, paint that needs to be done on the exterior you know we've seen some homes where it's almost a hoarding situation, where you find yourself, you know, just piled up on the front lawn. There's a reason people do buy in homeowners associations and typically a big part of it is the appearance. I want to know that the homes next to me are going to be kept up right. We're not going to have a car on cinder blocks. I'm not going to be the next door to a pep-do-bismol pink house. So appearance does count, for a lot of these people are making that decision to buy inside an HOA.
Speaker 1:When a community starts looking to run down, it's usually a variety of factors that's driving that.
Speaker 1:It could be failure on the board's part to enforce the rules and restrictions, it could be vendors who've stopped performing up to par and they should be replaced, or maybe they should be. A conversation should be had where the community says, hey, we need you to step up the service. It could be a shift in the number of homes or units that are leased and that maybe is creating a lack of attention to the community's appearance. So I think you got to look at all the different factors that might be going into this. My recommendation would be to sit down with legal counsel and the board and to discuss how to turn things around. One other thing and we did an episode with my partner Howard Pearl on our board member boot camp training we find that even dysfunctional boards who attend a training session together, they come out of that with a renewed sense of purpose and it really does create greater harmony if they do things together. So I would really urge John's board to go take a training session together.
Speaker 2:Yeah, it's interesting that you say that, especially with the conversation. I do wonder, and the answer is probably I don't want to assume it it's yes but I do wonder if John has spoken with other volunteer members on this board. Do other people feel like it's dysfunctional as well? Because maybe he feels like it is, but everyone else feels like it's okay. And then, like you said, I think a conversation with community members would probably be a good idea, because if he feels dysfunctional and chances are there may be other people who feel the same way but once there's a conversation and momentum moving towards, okay, we have to change something. Maybe that'll be easier, especially if he gets some people in the community to sign off on it as well.
Speaker 1:It's a really good point because, you're right, people have different sensibilities and sensitivities, so what may be irking John seeing those three gnomes?
Speaker 2:on that front lawn.
Speaker 1:The place is going to hell, but now people don't notice it. So you're right. By the way, I'm one of the pickier people in my own HOA, but I do.
Speaker 2:Are you one of the? Are you not one of the ones driving around in those golf carts? Absolutely not.
Speaker 1:I am not driving around in the golf cart and I do kind of adhere to the let them theory on most things, unless it presents. Look if there's something that presents a safety or security issue. This happens mostly in HOAs. Somebody's allowed their landscaping to get so out of control. Now it's impacting sight lines for pedestrians and motorists. That's a problem. So I think the board also has to choose its battles right. So many people make fun of HOAs because their priorities some of them their priorities are off. But I think if you work with council and you've got a reasonable set of priorities when it comes to the architectural control, that's going to help create greater harmony in the community.
Speaker 2:Okay there you go. Well, in the picky HOA, by the way, had been a theme in a few holiday movies I've seen this past holiday season. Oddly enough, several movies just had picky HOA people as a sub body was weird.
Speaker 1:By the way, I'm open for consultation. I don't know if anybody from Hollywood's listening.
Speaker 2:There you go. This next question is from Anna. I says we love the show and listen and listen to engineer Tim Marshall's episode several times. Since our older high rise must undergo a milestone safety inspection. Our building is in a great location right off the coast in Palm Beach, so we do have a lot of new owners who buy and completely renovate their units. Prior to the surfside tragedy, we always just required proof from owners that they were using licensed and insured contractors and that permits were being pulled for their projects. Now we're starting to think we should be doing more.
Speaker 1:Oh, I'm glad Anna asked this question, Claude, because her community is the rule, not the exception here.
Speaker 1:So, since surfside, everyone is more cognizant of the structural issues pertaining to older construction, particularly buildings located on the coast, like Anna's is. In the past, you're right, the litmus test was for owners who were undergoing construction inside their units. Is your contractor licensed, is your contractor insured and are you pulling permits? That's no longer good enough, in my opinion. My first recommendation is every association should have an engineer with whom they work and who they can routinely rely upon when these questions regarding building safety come up. I mean, tim's episode is a great one to revisit, so he really laid out all of the changes we saw legislatively post surfside. You know I have communities where licensed and insured contractors they've done a lot of damage to neighboring units in the top of that one.
Speaker 1:So just saying my contractor is licensed and insured isn't going to mean that the project the owner is contemplating isn't going to cause problems in the community. So what? My suggestion is make sure that you have some protocols in place regarding construction inside the units, that the association's engineer reviews those plans, not just the contractor saying I've looked at it, this looks good. That's like the Fox guarding the henhouse.
Speaker 1:So you need to have an independent review to make sure that none of the project that is being contemplated will impact the structural integrity of the building. And again, we're not talking about somebody who's just replacing wallpaper in an x-bathroom. We're talking about these renovations in these older buildings, in prime locations, where they're gutting the place, they're removing cabinetry, they're drilling out flooring, they're impacting plumbing lines and electrical lines, they may even be moving interior walls. So those are the kind of projects where you need to make sure that the contractor is not damaging electrical conduits, that they're not damaging common piping, that they're not drilling into the slab where they're impacting the, as I said, the structural integrity. Also, what kind of work is going to go on? How noisy is it going to be? How long is it going to last? A lot of these communities, particularly in Palm Beach and other areas that are very seasonal, claude, they restrict any sort of construction during high season, you know, during the fall days and things like that.
Speaker 1:So you do need to have those policies and protocols in place before you need them.
Speaker 1:Okay, because one thing is coming to you and said, hey, I'm gotten my whole unit and you don't have anything in writing. It's going to be very hard to now start making it up as you go along. So, council, I think for our multifamily buildings, a construction policy is essential. It's crucial, and you can even add in that the owner who wishes to undertake the renovation has to pay for your architects or engineers review of those plans. And then, lastly, when we're talking about renovations in Florida, no, we have a six month hurricane season here, and you're going to want to make sure that ongoing construction projects are handled properly in terms of securing any construction materials, that they're not left out on balconies, which many of them do, waste bins are properly emptied and secured prior to a storm. So that's. I'm glad I had to ask that question, because that's one of my favorite policies to recommend, and I have never seen a developer turn over a community, particularly a condominium or cooperative, with that kind of protocol in place. That's one that you have to work on.
Speaker 2:Nice, One of those policies and protocols that you discussed in the beginning of the show that you definitely want to make sure that you have. So this question is from Thomas. He says we are a condominium community with a large snowbird population and, as we record right now, it is a struggle for me in the mid-Atlantic area, in the Washington DC area, to get over the mid-40s as we speak. So I wish I were one of those snowbirds.
Speaker 1:Come on down.
Speaker 2:I need to, I should. I mean, I've got friends in Florida and they're posting pictures that they're playing golf right now in January and I'm like, wait a minute, what world are you guys living in? So, thomas says people often leave their units vacant for weeks or months at a time. Normally this isn't a problem, but we recently found out water was leaking on a fourth floor unit for weeks and damaged all the downstair units that stack, two of which were also vacant, and now we have a mold problem. We can't tell people to live in their units year-round and we don't allow rentals. So what is the answer?
Speaker 1:Professional Donna. So, as we said at the beginning, we've got a lot of people listening everywhere and there's a lot of places throughout the country, throughout the world, where residency is seasonal right. It's not just Florida.
Speaker 1:So, I recommend that all communities operating multi-family buildings adopt a vacant unit policy. Whether you're seasonal or not, you still got people that leave their units for weeks at a time. They may be going on a cruise, they're traveling, work takes them away. So in a multi-family building, it really is essential that you have a vacant unit policy. So what does that look like? Well, first of all, it looks like if you're going to leave the unit vacant beyond a certain time period not to be some clients say seven days, some say 10, some say 14, that's a discussion with counsel. It has to be reasonable. But beyond a certain time, the water supplied to that unit should be shut off.
Speaker 1:Okay so that's number one. But the AC should be left on at a reasonable temperature.
Speaker 1:Because, some people leave. They leave the water on, they shut the air off. It's a combination for mold to grow if there is a leak. The other thing you're going to want to have is somebody local that the association can contact if they need to get into the unit. Now some associations have keys to the units In Florida. The statute says that the board has the right to access the unit in the event that there's an emergency or they need to check anything out inside the unit, any condition which might impact neighboring units or the common elements. But again, people are reluctant to just use that key and go into a unit.
Speaker 2:Sure.
Speaker 1:And in some cases they don't have it, which means they need to break down a door or break a window, and normally, for Thomas's question, by the time they know that something's going on in vacant units. It's been going on for quite a while.
Speaker 1:Sure, so the water is either coming out the door or one of the people in the unit, maybe the first floor unit. By the time it gets to that unit, which is occupied, it's already done a lot of damage in the other vacant units. Now the other thing we can do is a water leak policy clause, so this also pertains to multi-family buildings. Water leaks are inevitable in these buildings, they just are. Sometimes it's related to construction defects. More often than not it's just related to human behavior. Somebody stuffs something down a drain that they shouldn't, or they don't replace an appliance or hot water heater when they should. There are leaks that spring from common pipes all the time and they cause damage in the units. So it does make sense to have a water leak policy, and that policy can also include requiring your owners to swap out items like hot water heaters at a certain date after manufacture regardless if it's still working, I think.
Speaker 1:My sister told me recently she replaced an AC unit and it was 25 years old 25 years old.
Speaker 2:You kept that thing going a long time.
Speaker 1:But, you know, that's my point. For some people they're just going to go until that thing has a problem, and that can be very problematic. So your water leak policy could have an expiration date. Speak to council. But it's a great question. Especially in a multi-family building, you have to anticipate that people are going to leave their units vacant, and what do you do about that? What do you do with a vacant unit when a storm is coming?
Speaker 2:What do you?
Speaker 1:do. If you need to get in there, if you suspect there's a problem inside the unit, have somebody local that they can contact, and that local person if you're going to be gone for the whole season, let's say two, three months that person should be required actually to go check on the unit every 10 days or so.
Speaker 2:Sure, yeah, that sounds reasonable to me that they would have that. All right. So this question here is from Morris. Morris says I've been the president in our 68 unit condominium for the last 10 years. Okay, oh yeah, mr President would like to know. He says I'd love to get off the board, but no one else seems to want to step up and take over the job. We have been asked to sign lender questionnaires whenever a unit is being sold, and the questionnaires seem to be getting lengthier and more confusing. Our manager does not feel comfortable with filling out these questionnaires and none of us on the board, none of us board members, want to do it. Must we fill out these questionnaires and if we don't, can we be sued?
Speaker 1:I deal with this question all the time, claude. As Morris indicated, lender questionnaires have expanded exponentially post-serve sites. So first of all I would say to Morris you can be sued for anything, or somebody can find an attorney willing to take that case.
Speaker 1:So, I can't tell you that you won't be sued or that you will be sued. There's always that option. But we also have listeners in all different states. So you have to check and see what your shared ownership statute says about a board's obligation to fill out lender questionnaires in connection with a sale or refinancing of a property. So in Florida, there's nothing in the shared ownership statute that says a condominium board, for example, has to fill out a lender questionnaire. It does indicate that if a board wants to fill out a questionnaire, it can charge for the time spent doing so and there's a monetary cap on that, but it doesn't say you have to. In Florida, you have to fill out an Estoppel certificate in connection with a sale. Now the 2024 legislative session just kicked off yesterday, which was January 9th. I know we're taping this. This won't be released for a few weeks, but the 2024 session in Florida just kicked off.
Speaker 1:We do have a controversial bill pending in Florida which would prohibit associations from charging the owner or the purchaser for the time it takes to prepare the Estoppel certificate. And I have to scratch my head with that bill, claude, because right now if somebody's selling their unit and the purchaser wants to know what's owed on it. The association can charge for the time it takes to prepare that Estoppel certificate. Some Estoppel certificates pertain to units that are in collections, so you've got to gather that information as to everything that's owed, including attorney's fees and costs. Some are requested on a rushed basis. This takes time and effort. Right now management companies charge for this. What will happen if this bill passes in Florida Senate Bill 278, is that all the other members of the association will have to pay those costs to prepare an Estoppel certificate, even though they're not the ones selling their unit. So we'll see what happens. I have to tell you. The 2024 legislative session right now the bills we were seeing.
Speaker 1:It's going to be really interesting. But to get back to the question, I think it was Morris.
Speaker 2:Correct, mr President, as I like to call it. Oh, mr President, get back to Mr President's question about these questionnaires.
Speaker 1:After the Champlain Tower's tragedy, fannie Mae and Freddie Mac revamped their questionnaires and basically they want to know if there's any structural issue with the building in which they're securing the loan. Here's the problem with that. Our volunteer board members and managers should not be put in the position where they have to translate an engineering report where they have to make affirmative statements about the structural integrity of the building.
Speaker 1:My preferred way of doing this would be have your owner who is selling or your owner who is refinancing request a copy of the engineering report and then allow that owner to present that to the lender and let the lender look at it. The problem is these lenders have basically tried to turn volunteer board members into quasi loan risk assessment officers.
Speaker 1:There's enough information in the public records, as well as information that the owners can provide, where a lender should be able to evaluate whether or not there is significant risk in making that loan. And, of course, now Fannie Mae and Freddie Mac also have a blacklist in terms of certain communities, due to their age and perhaps lack of reserves and upcoming maintenance or repair projects that are not going to be eligible for financing. So this is becoming a really big problem. I will say this I have some communities that have passed a board resolution on lender questionnaires. Some say we're not filling them out.
Speaker 2:Okay, we're not filling them out, we're doing these sample certificate, good luck.
Speaker 1:All they say we'll fill them out, but we're only going to answer the questions that we feel 100% certain of the answers, and you know I've seen these questionnaires. Some will say do you anticipate an upcoming structural problem? You can answer that question.
Speaker 2:Right yeah.
Speaker 1:That's a problem. So I understand Mr President's concern here because I share it and I've drafted a lot of those policies. What I would recommend is have one on hand, because the first time you say we're not filling this out and you don't have that board resolution paired and passed, what's going to happen is the closing agent will hound you to death.
Speaker 1:I just do residential real estate closings and commercial real estate closings early on in my career and you know how hectic and chaotic and frantic it can get as a closing date gets closer. So if you have the resolution, you just forward it and say this is our policy on the issue of lender questionnaires. Now there are sometimes threats saying, hey, if you don't fill this out I may not be able to close. I will tell you I've had clients stand firm on their position with regard to filling out these questionnaires and haven't had a closing derail does it so this is a conversation with council.
Speaker 1:I think there's probably a reasonable middle ground to reach here. Help owners refinance, you can help, you can facilitate the sale of units, but you don't put the association or the individual board members or manager at risk by making them attest to things for which they don't have absolute certainty.
Speaker 2:Yeah, and given Morris's email, it seems as if getting that kind of resolution done in past won't be that tough, because it seems like his board members are in agreement. And, by the way, I'm with Mr President, nothing makes me check out quicker than a survey, than a questionnaire, or for some reason I'm weird about it. It's like a spreadsheet to track something. I'm not going to look at it, I'll be out of the loop. I just I can't do it, can't do it.
Speaker 1:All right. So here's Well, you're very self-aware. It's good to know.
Speaker 2:Yes, and that's all right. Self-awareness is a great quality to have.
Speaker 1:I'm just aware it's the best quality to have.
Speaker 2:So this is from Tanya Love the pod. I'm not on the board in my HOA but I'm considering running next year. The issue I'm having is that I'm not currently an owner. My mom owns the house but she will give me her proxy to attend meetings. The board has said that's not good enough and I cannot attend, nor can I run for the board. Are they right?
Speaker 1:Well, first of all, tanya, thanks for listening. Thanks for the compliment on the podcast. I think it's great when people want to get involved in their communities. Okay, so this is somebody living with her mom. She wants to get involved. To me that's admirable, because apathy is usually the norm in a lot of communities.
Speaker 1:But, the answer to her question depends in part on the association's governing documents. So if she hasn't read the governing documents for the community in which she lives, I would recommend that both she and her mother read them, because in some communities you don't need to be an owner to serve on the board. You don't need to be an owner to vote. It depends on how a member association member is defined under the governing documents. So that's number one. Number two if she wants to attend meetings and speak at those meetings, whether it's a board meeting or a membership meeting she's going to need a document that's called a power of attorney and in that power of attorney her mom is going to have to specify that Tanya is able to attend board and membership meetings and speak on her behalf, speak to agenda items. So you know proxies. People get very confused about this. Typically, a proxy for voting the governing documents will require that that proxy be given to another association member. Okay, and not another owner.
Speaker 1:So what Tanya really needs from her mom is a power of attorney to attend. The other thing that might happen, frankly, is speak to her mom about maybe transferring a little bit Tanya, I'm doing you a solid here Maybe transfer a little bit of interest in the unit to her.
Speaker 1:I've seen people transfer as little as one or two or five percent ownership, if the documents do require you to be a record title owner in order to be a member of the association, so for state planning or take tax planning purposes, it might make sense for her to become a co-owner of the unit.
Speaker 2:Right, okay. So, tanya, you've got some options All right. So this next question comes from Louis, or Louise. Excuse me if I'm pronouncing your name incorrectly one way or the other, but this sounds like a script right out of one of those holiday movies I was talking about.
Speaker 1:So, louis, says You've got to tell me the names of those movies.
Speaker 2:Yeah, I don't remember them off the top of my head, but I will send you an email with those movies. So he says I'm sorry to say, but nobody likes our board president. He sends out nasty emails and talks over everyone at meetings. He recently sent an email to me and the rest of the board and said he was resigning. Five minutes later he sent another email saying he was resending his resignation. Do we have to allow him to stay on the board?
Speaker 1:First of all, Claude, I question whether Louis or Louise really is sorry to say that nobody likes this president.
Speaker 2:Yeah, yeah, yeah, it doesn't sound like Louis is sorry to say that he led with it. He led with it, he's trying to be polite.
Speaker 1:I love this question because it invokes three of my favorite policies that boards need. It's a policy on resignations, an email policy and a meeting participation policy. So I'm going to break them down. Okay, first, I want to start off by saying years ago I used to have a blog and I had a blog I wrote that said don't resign in the huff. Because that's what happened.
Speaker 1:So I have seen more than my fair share of directors over the years just resigning in the huff. It's very emotional. They feel disrespected, they're not being heard, I resign, I'm out of here. Once you resign, it's effective immediately, unless you have a deferred resignation date. So somebody may write and say, hey, I'm resigning, effective June 1st. Okay, that's different. But if I'm just right and say I'm resigning, I'm done so. To Louis's question this board member who resigned, if he wants to get back, even though he sent an email five minutes later, if he sent it five seconds later, he has still resigned, since he did not add a deferred resignation date. So what now needs to happen is his former fellow board members would have to vote to fill his vacancy with him, and normally that doesn't happen.
Speaker 2:Yeah, and it doesn't sound like that would happen in this situation either.
Speaker 1:No, it doesn't. It really doesn't Now, and I say this with the caveat that there may be something in governing documents that handle resignations differently, but the standard is, specifically under Florida law Once you tender the resignation, it's effective. So that's number one. The second policy the associations need to consider is an email policy, and often this can be embedded inside a larger board member code of conduct. So I've been doing a lot of these over the last two to three years, claude, and the code of conduct is great because it creates a framework for the operations.
Speaker 1:You know a lot of people get on boards. Nobody tells them what they're doing, nobody tells them what their job description is. It's kind of just you know you're on the board and you just learn as you go. And this is particularly true if you've had a recall situation where the prior board has been recalled completely, you've got all new people on. Nobody's there to help them. And this is where I say work with counsel on some strategic short and long term planning.
Speaker 1:Board member code of conduct can go over things such as how do you handle privileged and confidential information Sometimes when we see let's get back to the first question we had, which was about a dysfunctional community from John right. So sometimes the form the dysfunction takes is you've got people on the board that don't agree with the board decisions. They're on the losing end of the board vote so they go and they feed confidential information to other people in the community. Board member code of conduct would prohibit that. Board member code of conduct would create certain expectations when it comes to the manner in which you communicate no profanity, no name calling. I mean it sounds almost silly that we have to tell people to act like adults and act professionally, but we really kind of do. I mean we've seen an erosion of civility across the board in our society. These, these community associations are a microcosm of what we're seeing on a larger scale. So the board member code of conduct it's certainly not a silver bullet. It doesn't solve everything, but it does let people know what are the expectations.
Speaker 1:So in this case, lewis's president is sending out nasty emails. One of the things I counsel associations is who's going to be your mouthpiece. Who's the person who's best suited to deal with vendors, to deal with unit owners, to deal with unhappy residents? My experience over the years is sometimes it's the person who's least well equipped who is poorly equipped to deal with people. Who's the person who's dealing with people while you've got somebody else sitting on the board who's really quite good at communicating and that person is not doing it. So you know, a lot of problems get worse depending on the way you communicate.
Speaker 1:So that board member code of conduct and the email policy can be very useful in kind of diffusing arguments right at the beginning. And let me give you an example with an email policy. So we've got a lot of boards five, seven, nine member boards. If an owner sends that email, claude, and they copy all seven or nine board members who writes back Right Without a policy in place, you may get six people, six board members to write back to respond. Two may be nasty, three may give different opinions.
Speaker 1:You know so if somebody says where can I park, the worst thing you want to happen is to have different members of the board writing back with different instructions yeah, because that becomes a problem later if we head into litigation.
Speaker 1:So an email policy is really important. And again, I've never seen a community come out of the gate and have something like this already in existence. It's something that over time you figure out. Gosh, we really kind of need this. And then, lastly, participation at meetings. Okay, you really need a rule on participation at meetings. How many minutes do you want to allow people to speak? In Florida, in the HOA statute, it dictates at least three minutes. But look at your own state statute. See if there is a requirement in terms of minimum participation. How should videotaping of the meeting be handled? What you know? What's the recourse if somebody gets unruly Unruly? Also and this is a big one will Robert's rule of order be used? Do you remember we had a podcast episode with Jim Slaughter? The parliamentary procedure.
Speaker 2:Oh, yeah, sure I do.
Speaker 1:So that can be very confusing for a lot of people. Your documents may require you to follow Robert's rules of order, but more often than not, people are think they have to follow it and they're not required to figure out whether or not you want to follow Robert's rules. And, by the way, if you say you're going to follow Robert's rules, you might want to pick up one of Jim's books and figure out what you're actually doing. So those are kind of the policies that were touched on in that question.
Speaker 2:Yeah, well, the good thing is that I think, like you mentioned in the beginning, you know if your board or your association doesn't have certain policies, of protocol, protocols, these questions that we talked about today kind of give you a good framework to start, or at least try to include them in yours. And we did cover a lot. But if there were something done or some things that we didn't cover, what are some other things maybe not discussed that you think we should have or that any board should have as far as policies and protocols that we may not have covered earlier?
Speaker 1:Well, I think you absolutely need a collection policy, right? So the assessments coming in are the fuel for the engine that operates all of the services in the community. So you need to have a collection policy. And this becomes important, claude, depending on what's going on in the greater economy. So during the recession, we saw that people were using, you know, older collection policies where maybe they were sending out two, three, four warning letters and then finally turning it over to the association council to collect at the link when accounts. Of course, now you have to look at the state statutes and see what they require in terms of your law firm collecting those accounts. For some communities this put them months behind schedule and you know they say, bigger the balance, the bigger the problem collecting it. So I think every community needs a collection policy. You also need to know are you entitled to charge late fees and interest? So we got a lot of communities out there charging things they should not be charging.
Speaker 1:By actually sitting down and crafting a collection policy with association council. You'll know what you can and can't do, and if there are gaps in your documents in terms of being able to charge late fees and interest, then you might want to fill those with an amendment. Look, the reality is it's not about being punitive. It's about making sure that everybody is paying their assessments so you can continue to ensure the property, maintain and repair the property, provide the services that people thought they were getting when they bought. So I think a collection policy is a must, an election ballot handling policy.
Speaker 1:So in Florida, claude, a lot of the complaints we see that are made to the department of business and professional regulations, division of condominiums, pertain to election disputes. Something got screwed up. I was supposed to be on the ballot. I'm not on the ballot. They said I was delinquent. I paid what have you? You need a policy regarding how election ballots are to be handled.
Speaker 1:In Florida for condominiums and cooperatives, they are required to conduct a secret ballot process for election of directors. But what does that mean? What if I come in and I hand in my ballot with my outer envelope with the inner envelope tucked in? What's the manager's responsibility at that point. Can the manager leave five ballots sitting on the desk and go to lunch where anybody can come in and tamper with them? What kind of security protocols do you have in place? What if somebody comes in and says, hey, I made a mistake and I have my ballot back in Florida? You can't do that. So there's a lot that goes into it, but I think an election protocol policy is essential.
Speaker 1:I think a policy on emotional support animals. We've had Joanne Nesta Burnett, my partner here at Becker, on the podcast twice talking about service animal and emotional support animal requests. Those involve a lot of sensitive information being submitted for evaluation to determine if the person really requires an emotional support animal or a service animal. So you need a policy in place. Where is all that documentation being stored? How long is it being stored? What kind of security protocols do you have in place? What kind of shredding protocols do you have? And when you transmit it, are you transmitting it just by forwarding the email or are you using encrypted email? So I think a policy on ESA and service animals is important. And then, lastly, an enforcement protocol, and this is a big one, because everything we've been talking about involves enforcing the rules and restrictions in the governing documents.
Speaker 1:So, a lot of boards don't have, believe it or not, an enforcement protocol, and by that I mean, depending on the type of problem you're having, whether it's you know somebody's parking in the wrong spot, or they have a commercial vehicle they shouldn't have in the community, or they have unauthorized guests, or it's 55 and over and they've got younger people with kids living in there. Whatever it is, what's the starting point? Are you sending, are you having your manager send out a warning letter? Is the board sending a warning letter? Is somebody picking up the phone and calling that person? Is it going straight to the law firm? What's the initial communication look like? And also, is there a deadline given? If so, how much of a deadline? Because it depends. There are violations which can involve potential threats to safety and security. Those need to be acted upon more quickly than you know. Somebody's got a flag up that you don't like, okay, so there's a lot, but I think an enforcement policy is crucial. So those, I guess, would be the ones. I think you know the takeaways for our listeners.
Speaker 2:Now and you deal with. You know these, you know a lot, you deal with it often. Are there any that kind of annoy you that maybe like a pet peeve, and maybe it's it's ones that you think it's so unnecessary or this problem is avoidable if you would just put simple things in place? Are there any that like really, when it comes across your desk, you're like, oh, come on, not this, this is so avoidable.
Speaker 1:Yes, and I want to tell you what it is. My number one pet peeve here is a board that has paid counsel to prepare policies and protocols and then they never adopt them. They never. It goes into a vacuum. It's like you tossed it out the window, or they've adopted them and they don't remember.
Speaker 1:And it's like amnesia and you're starting all over again. I would say to, I would say to our listeners if you've gone to the trouble to work with counsel and pay counsel to prepare these protocols, please make sure that your manager or your self-managed board is adopting and enforcing them. Otherwise, what are we doing here, people?
Speaker 2:Right, I mean you can save your counsel, the work. Just write them a check and don't expect anything back from them, just give them money.
Speaker 1:That's the most frustrating thing, claude, because I want people to get the value of what they're paying for and I want them to have these tools. So I think that's an important one, and that also speaks a lot to housekeeping. So how organized are you? How organized are your documents? How organized are you with regard to your limited common element? You have assigned parking spaces, assigned boat slips, storage areas, all of those things. A lot of the issues we deal with, and a lot of time and money is spent that could be avoided if people had better internal housekeeping. And I realize a lot of times this is because they've switched management companies and the prior company has not been all that cooperative in terms of the documents and the operations they've overseen. But this is when I sit and talk to communities about long-term planning and short-term strategic planning. Internal housekeeping protocols is right at the top of the list, because if you're disorganized, that is going to be very hurtful, particularly if you get into a legal dispute.
Speaker 2:Okay, now Donna, this one was not sent in, this is one from me.
Speaker 2:So, my wife and I we were opening mail the other day and, by the way, we were opening mail, I'm opening mail because she doesn't check the mail, but I'm opening mail and we get this letter from the HOA and they have a, I think two openings or whatever on the board for board members and I'm letting her know about this and she's like, well, I wonder if one of us should jump in. And I was like I don't know, I don't know if. And then I thought to myself maybe I should ask Donna, and I'm sure you'll come up with where there are no cons, it's only pros. But should I and I'm not necessarily, I mean outside of, just like neighborly stuff, I'm not necessarily involved too much. I mean, my wife has gone to some HOA meetings. Is this something I should take a look at? Is this something that maybe I should do, or maybe just push my wife to do it?
Speaker 1:I think you have to do it because you produce a podcast called Ticket to the Board.
Speaker 2:It's content it will be content for the show.
Speaker 1:It's definitely content. Listen, I served on my own HOA board for two years. My husband, michael, who's also an attorney. I think he was on it for like seven or eight years. There was a burger seat on the board. You learn things sitting in that position.
Speaker 1:So I think everybody who lives in the community association should consider running for the board right. For many people, their home is their biggest investment. Right, and it's. You'll feel better about the community, you'll feel better about your association if you kind of know what's going on. If you don't want to serve on the board, at least go to the meetings, okay. So that's number one. That's a given. You're paying assessments, you live there.
Speaker 1:At some point there's going to be something that irks you. But yeah, I would urge you or your wife to get on the board. I think it gives you a whole I know it gives you a whole different perspective in terms of how things operate. It may not make you happier, I will tell you. When I was on the board it didn't necessarily make me happier, but I did have an appreciation for the amount of time that my board, my fellow board members, put into it, because we were self-managed, we didn't have professional management so everybody kind of had homework before the next meeting. But it was nice to sit and you know it does foster more of a sense of community, I think. And look, if you get on it and you hate it, we can go back to that resignation question, just send an email and then, once I send it, it's done, I'm out, I'm done.
Speaker 2:So, yeah, maybe, maybe I will look into it, and Donna? One other question for me, and I think our listeners may want to know too how did you end up in community association HOA law? Was this something that you know, a young 15, 16-year-old Donna always wanted to do when she graduated high school, and you know what was the journey like for you.
Speaker 1:There is a story behind this clock. So I did not ever consider being a community association attorney, that like when I was in law school. By the way, I was a 23-year-old lawyer, so I did did college for years I did not consider association law. This is my son Ryan's fault.
Speaker 1:What happened was I was working in downtown Miami at a boutique real estate firm and I was living in Aventura and I really did not see myself continuing to commute down to Miami when he was so young. And I was contacted by the firm I'm at right now Becker and Polyakov and they had a flex time program and somebody had sent them. I had interviewed at another firm but they were looking for full time. I said I really don't want to do full time right now and they went and sent my resume over to Becker and Polyakov. That did have a flex time program, which was wonderful. So when Ryan was little, and then after that I had my daughter Lauren, three years later, I could work 15 hours a week, 15 to 20 hours a week when they were little. And that's how I got into this area. And I remember interviewing with the firm's founder, gary Polyakov, who said well, you know about the condo law, ms Berger. And I said sure, and I'm thinking I'll read the statute. How hard could it be? It was a lot harder than just reading the statute.
Speaker 1:This area of law involves contract law, labor law, you name it, everything, everything you can possibly think of, plan use and zoning. So I haven't been bored all these years doing this area of law. You know some people may think it's. It's well, it's simple, right, it's. It's not. It's very nuanced and it also requires listening to people and understanding their frustrations, because this isn't like representing a corporate entity where you know, at the end of the day, you got a problem, you leave, you go home. This is a living together relationship. You have a problem in the community, those board members and owners, they see each other at the pool, in the elevator, next door, at the clubhouse. So you know I do feel a responsibility all these years it's been fulfilling it's. I'm not going to kid you, it's been frustrating but at the end of the day, if you can help people resolve these disputes, it's. It feels good.
Speaker 2:Yeah, and then I mean, you wouldn't be a podcast star. Also, you became a podcast star.
Speaker 1:I think you may be using the star the term star a little loosely, but so right back at you. Before we conclude, let me ask you, tell us a little bit. How did you get into? You know podcasting and I know you do. I know you do something with. Is it the US Open Radio?
Speaker 2:Yeah, yeah. So I do a lot. I mean, when it comes to media, I do a ton of different stuff from radio at you know music stations and sports stations here in Washington. You know I produce for the Washington Commanders and the Washington Wizards, dc United Soccer and from radio a lot of my clients that I've worked that I have for my company now, hopeline Media, are former radio people that I've worked with before that launched out and did their own kind of podcasting and through word of mouth I've got more clients that I can handle on my own. So I've got four people that contract under me to take care of some of the. You know live engineering and you know editing and things.
Speaker 2:And one thing I love about what I'm able to do is the things that I learned. Like I don't know anything about HOA law, anything like that, but listening to you and other experts in the field. There's another podcast that focuses on space design and engineering and nearing and rocket launch and I'm learning that they're doing 3D printing and space using space matter as feed matter. It's just and you learn so much stuff from all these smart people that I talk to people and they think that I'm smart and I know things and I just sit in on recordings and I edit stuff.
Speaker 2:But ever since probably my senior year in high school, a new media was what I wanted to do. It was kind of after newspapers kind of went south and online publications started to make their way. And so I did all the things you're supposed to do. I interned at local television stations and local radio stations and then got an overnight gig working 9pm to 6am at the all new station and the next thing you know, you just kind of train and ask people can you show me this? Can you show me that you stay late, you get there early, you learn things and someone gets sick. You got to fill in. And the next thing you know, opportunity opens. And the legendary basketball coach, late John Thompson from Georgetown, said you know you can never schedule. An opportunity knocks on your door. You just got to have your backs packed when it comes.
Speaker 2:And I just tried to be great quote yeah, I just tried to have everything ready and just learn all things, from news writing to camera work to video editing, audio editing, and just kind of go where the opportunity takes me.
Speaker 1:Well, we are so fortunate to have you. When I, when I hear about all your other, all your other ventures, I say, oh my gosh, I don't know that we can. I don't know that take it to the board is as exciting as the sports, particularly the sports things you do.
Speaker 2:Yeah, it was last summer. I think I had felt to mention that I was in New York for the US Open and I was back in the hallway somewhere in this dark little studio getting ready to go on. What, where are you? I'm in New York for the US Open. Wait a minute. What? Like, yeah, I got to do your stuff already. Look, it comes so routine. I don't think anything of it but it. But I'm very fortunate to have to be in the field that I'm in and get the opportunities that I get, including working for. Take it to the board.
Speaker 1:Well, we have to give a shout out to your son too. So how is your son? Your son is on the tour, Is he? Is he?
Speaker 2:Oh yeah, so, yeah. So my son Manny, he's 11. He's on the P, he's in the PJ Junior League. He won MVP for his particular team two years in a row. He started doing individual tournaments last summer. He won both of the tournaments he was in. He also wrote a book called it's Okay to Be Me. So I started when I was a kid, my wife started as well. He stutters as now. We both grew out of it. He may, he may not, but essentially the book is about his journey with stuttering, but not letting it stop him from, you know, speaking his mind and saying what he has to say and being confident and just trying to encourage kids. A children's book to encourage kids. You know, if there's something about you that you may not like or someone may try to make fun of you about it, so it you know, just brush it off, it's okay, it makes you unique and stuff like that.
Speaker 1:That's amazing. You never told me that before. So let people know where can they find the book.
Speaker 2:Oh yes, so the name of the book is it's Okay to Be Me Manny Jennings, m-a-n-n-y. Jennings, and they can find it on Amazon. You can order it on Amazon and gift it to a young person in your life a young kid, I'm going to give it to my nieces.
Speaker 1:There you go Well thank you, claude, this has been fun.
Speaker 2:Thank you so much, Donna.
Speaker 1:Thank you for joining us today. Don't forget to follow and rate us on your favorite podcast platform, or visit tickettotheboardcom for more ways to connect.