Page 11 - CooperatorNewsSouth FLorida 2021

SOFL.COOPERATORNEWS.COM
COOPERATORNEWS SOUTH FLORIDA —
FALL 2021
11
Disclaimer: The answers provided in this Q&A
column are of a general nature and cannot
substitute for professional advice regarding
your specific circumstances. Always seek the
advice of competent legal counsel or other
qualified professionals with any questions you
may have regarding technical or legal issues.
PULSE ...
continued from page 4
Please submit Pulse items to
Darcey Gerstein at
darcey@cooperatornews.com
an attorney to understand one’s rights and
the best course of action to stop the clock
on the foreclosure action and to resolve the
error that was made.”
Seasonal Residents on Board
Q
We are a co-op resident–owned
park, with a board consisting of
seven members. Our problem is
that six out of those seven board members
are seasonal residents, which leaves just
one board member on-site for part of the
year. While the rest are gone, the park still
functions 24/7, and many decisions must be
made during this time. I attended a Com-
munity Associations Institute (CAI) Q&A
session and was informed that we could
not communicate by mass email to make
board decisions. So I have two related ques-
tions: 1) Can we use personal email to vote
on an issue if we just send them to maybe
two board members at a time? And 2) What
can we do that will allow our board to make
decisions while the majority of the board is
seasonal?
—Part-Time Problems
A
“On the first question: Be-
cause many owners of homes
in the state of Florida often
retain ownership of their home up north
and continue to reside there for much of the
year, Florida boards of directors oftentimes
find themselves without the ability to meet
as a group and discuss the problems facing
their community,” says attorney Eric Glazer
of the firm Glazer & Sachs in Fort Lauder-
dale. “As the use of email has exploded over
the years, board members want the ability
to at least communicate with each other by
email, and perhaps even vote on issues by
email.
“The law now allows directors to com-
municate by email but they still cannot vote
by email. A vote on a matter must occur at a
properly noticed meeting. The cooperative
statute also specifically states: ‘Directors
may not vote by proxy or by secret ballot at makes a ‘written’ request for access. The
board meetings, except that officers may be unit owner sent an email instead. The man-
elected by secret ballot. A vote or abstention ager at first acted on the email by respond-
for each member present shall be recorded ing to it and promising to allow access to
in the minutes.’ It is clear from this provi-
sion that voting is to occur ‘at board meet-
ings’ and not through any other means. In tion action against the association. The de-
fact, the vote at the meeting is to be record-
ed in the minutes.
“For the second question, living away The arbitrator rejected the defense, holding
from the community is no longer an excuse that once the manager treated the email as a
for failing to attend board meetings if you writing, he was required to comply with the
are a board member. The cooperative stat-
ute states: ‘When some or all of the board the records.”
or committee members meet by telephone
conference, those board or committee
members attending by telephone confer-
ence may be counted toward obtaining a
quorum and may vote by telephone. A tele-
phone speaker shall be utilized so that the
conversation of those board or committee
members attending by telephone may be
heard by the board or committee members
attending in person, as well as by unit own-
ers present at a meeting.’
“So, as long as the board member lives in
a place that has access to a telephone, or has
cell phone service, that board member can
call in to the board meeting in Florida and
vote on any pending matters. As you can
see, however, the association must set up a
speakerphone system.
“As long as we’re on the subject of emails,
board members should be aware of two
things: First, arbitration decisions have held
that emails by and between board members
are not ‘official records’ of the association
that are obtainable by unit owners, unless
the email winds up on a computer or ac-
count owned by the association. That does
not mean, however, that an email by and
between two [or more] board members
cannot be subject to a subpoena in a court
case. So board members should always take
caution when sending an email that even
though you believe it to be ‘private,’ it is pos-
sible that it will be passed around by jurors
or seen by a judge one day. Take caution and
don’t write anything in an email that may
embarrass you later.
“Second, there is a recent arbitration
case involving a condominium wherein the
statute allows access to records if the owner
the records. When the manager did not al-
low that access, the owner filed an arbitra-
fense was that the records request was not
made in ‘writing’ but instead by an email.
statute and allow the unit owner access to
n
Write to
CooperatorNews and
we’ll publish your question, along
with a response from one of our
attorney advisors. Questions may be
edited for taste, length and clarity.
Send your questions to: darcey@
cooperatornews.com.
Q&A
investing themselves in discovering the
construction history and maintenance in
a given building.
“The lesson learned from this horrible
tragedy is that closer attention needs to
be made to the maintenance of these
buildings, and condo associations have
to make sure they’re properly funded to
meet the maintenance needs,” says Cer-
vera. “I think that we will emerge stron-
ger and safer as a result of this since there
will be stricter guidelines and more cau-
tion around building inspections.”
Ricardo Wolf, a broker and develop-
er of luxury commercial and residential
projects based in Fort Lauderdale, tells
Mansion
that similar scrutiny is being
paid to new developments as well. He
contends that “some high-end property
buyers must have concerns on how a giv-
en development was designed, planned,
engineered and constructed”—concerns
that did not surface as much before the
Surfside disaster.
“In the past, many buyers might’ve
simply assumed a property was planned
and built properly,” Wolf continues.
“Now, I have had more than one conver-
sation regarding a client’s comfort level
of moving into a high-rise building.”
While Wolf stresses that the concern
about new construction can be seen
as premature, given that the laws and
awareness around building guidelines
and regulations have and will continue
to only get more strict, in buildings of a
certain age, administrators need to step
it up. “When discussing older buildings,”
he adds, “those with owner-run condo
associations will be pressured like never
before to get ahead of potential issues
now deemed unacceptable.”
n
THE BEST TIME TO
FIND AN EXPERT IS BEFORE
YOU NEED ONE.
BROWARD COUNTY CONVENTION CENTER, FORT LAUDERDALE
THURSDAY, DECEMBER 9, 10:00AM-4:00PM
FREE REGISTRATION: FL-EXPO.COM
Q&A
continued from page 10
don’t ask the same questions or follow the
same procedures as when you move into
a brand new building. You need to talk to
the condo association. How is the build-
ing behaving? Has there been an inspec-
tion? Has the condo gone through mul-
tiple buyers? That’s a red flag.”
Real estate agents in South Florida
have a similar perspective, according to
Mansion.
Alicia Cervera, managing part-
ner of Cervera Real Estate, a luxury bro-
kerage representing multiple large South
Florida developments, as well as a board
member of the Miami Downtown De-
velopment Authority, sees more buyers