As an essential services provider in our community for over 120 years, we are proud to remain open for the transaction of our clients’ legal business during the coronavirus (COVID-19) pandemic. During this time, the safety and health of our clients, our staff and our attorneys is of foremost importance to us. To prevent unintentional business and workplace transmissions, we have implemented certain protective measures at our office. Effective April 3, 2020, our office lobby and meeting rooms will be available for client consultations and real estate transactions “by appointment only.” Additionally, in compliance with local, state and federal COVID-19 guidance, we have limited physical gatherings and meeting group sizes to ten (10) persons or less at all times. We also continue to perform increased environmental cleaning in our public spaces.
During appointments, we kindly request all that of our clients and guests practice ordinary respiratory etiquette and remain mindful of applicable social distancing requirements.
If you have an appointment scheduled and are feeling unwell, please contact us in advance and make arrangements for your appointment to be held by telephone or web-based conferencing. If you have other concerns regarding your visit, please notify us and we will be glad to make special arrangements in order to assist you.
It is a difficult time. Concerns about the coronavirus and COVID-19 are especially acute in the context of HOAs, condominiums and cooperative associations. For members, officers and directors contemplating upcoming meetings and events, guidance is needed. The statutes governing community associations generally require public meetings, open to all and noticed in advance, and broadly proscribe the wholesale closing of common areas and common elements. Community leaders and members do not know if the statutory requirements remain fixed in light of the present public health situation. What are their options?
The Florida legislature has provided a mechanism by which condominiums, cooperative associations and homeowners’ association can adapt their operations to present circumstances. These statutes (§ 718.1265 for condominiums, § 719.128 for cooperatives, § 720.316 for homeowners’ associations) all provide for reasonable flexibility in response to damage caused by an event for which a state of emergency is declared. Florida’s Governor declared the existence of that state of emergency on March 9, 2020 (Executive Order No. 20-52). The “damage” referenced in the foregoing statutes is not expressly limited to property or building damage.
In light of this statutory authority, community associations and the leaders should keep the following points in mind as they consider upcoming operations and meetings:
- Consider postponing upcoming meetings and social gatherings;
- Cancel meetings and events involving more than 50 people;
- Adopt enhanced cleaning procedures for common areas and common elements;
- Host board and committee meetings virtually, invite members to join remotely (phone, Skype, etc.) and immediately post and circulate recordings and minutes;
- Practice social distancing; and
- Following the guidance of public health authorities such as the Florida Department of Health and the Center for Disease Control and Prevention.
Even small steps can make a big difference in our communities and neighborhoods.
In representing condominiums (condos) and homeowners’ associations (HOAs), I am often asked whether the resignation of a board member or officer is valid. Invariably, the person in question has either announced “I quit” at an open meeting, or simply told another officer of the fact. Is a verbal resignation from the board of a non-profit HOA or condo valid?
The answer to is emphatically NO, unless the bylaws or articles of incorporation expressly allow it. In my experience, community association governing documents generally reference resignation, but do not spell out how it should to occur. If that is the case with your association, the issue is governed by the Florida Not For Profit Corporation Act (Chapter 617, Florida Statutes). Two provisions are relevant. The first is Section 617.0807(1), which states that “[a] director may resign at any time by delivering written notice to the board of directors or its chair or to the corporation.” The second is Section 617.0141(1), which requires any “[n]otice under this act to be in writing, unless oral notice is: (a) expressly authorized by the articles of incorporation or the bylaws.”
When read together, these statutes require a resignation to be in writing unless the association’s bylaws or articles of incorporation expressly allow a verbal resignation. Recent arbitration decisions issued by the Florida Department of Business and Professional Regulations arrive at the same conclusion.
- Sanville v. Venetian Mgmt. Assn., Inc., Case No. 16-04-7565, 2016 WL 7667624, at *3 (Fla. D.B.P.R. Summary Final Order, Nov. 17, 2016) (“Since oral resignations are not explicitly authorized by the Association’s governing documents, resignations from the Association’s board of directors must be in writing and properly delivered to the Association to be effective.”)
- Brand v. Sundance Assn., Inc., Case No. 16-00-5242, 2016 WL 4939974, at *2 (Fla. D.B.P.R. Summary Final Order, July 6, 2016) (“Since oral resignations are not explicitly authorized by the Association’s governing documents, resignations from the Association’s board of directors must be in writing and properly delivered to the Association to be effective. Therefore, Petitioners’ verbal resignations at the November 17, 2015 board of directors meeting were ineffective.”)
- WPB Berkshire a Condominium, Inc. v. Unit Owners Voting for Recall, Case No. 05-04-7905, 2005 WL 3966672, at *4 (Fla. D.B.P.R. Summary Final Order, Oct. 11, 2005) (“Mr. Gilbert erroneously believed that Mr. Ostrovsky had resigned because of certain comments that Mr. Ostrovsky made to Mr. Gilbert. Mr. Ostrovsky did not submit a letter of resignation as required by § 617.0807(1), Florida Statutes, and he has continued to serve as a board member.”)
In sum, for HOAs, condos and other non-profit community associations, “I quit” is not generally enough. Make sure the resignation is in writing and specifies the date it is to be effective. Otherwise, we might not know who is actually on the board!
Boswell & Dunlap LLP was thrilled to continue its sponsorship of the 2020 Polk County Public Schools Teacher and School-Related Employee of the Year Program. Congratulations to Dr. Vincent Miller, Kay Llewellyn, and each of this year’s finalists. The firm is proud to be associated with this annual event honoring those who make the difference in the lives of our children.
Boswell & Dunlap LLP is pleased to announce that Sean R. Parker has been appointed president of the Polk Area Real Estate Council. The council connects real estate attorneys and professionals throughout Polk County and beyond to provide education, information and resources to consumers and our real estate community, to enhance the practices of real estate attorneys, and to make each real estate experience a successful, positive and rewarding one. Sean’s appointment continues the firm’s century-long commitment to our local real estate community.
Boswell & Dunlap LLP is pleased to announce that Attorney Jillian T. Spangler has been appointed Alternate Special Magistrate by the Polk County Board of County Commissioners. As Alternate Special Magistrate, Ms. Spangler will preside over Code Enforcement Public Hearings. She will have the authority to determine, based upon the evidence and testimony presented, if a code or ordinance violation has occurred. Ms. Spangler’s appointment as Alternate Special Magistrate continues this firm’s long history of service to Polk County’s local governments, and the citizens they serve.
On January 24, 2020, Robert Chilton will host a free HOA seminar at the Lakeland Public Library on Lake Morton. The event, which begins at 3:00 p.m., will focus on legal issues facing Florida homeowners’ associations and include topics such as meeting procedures, estoppel requests, covenant enforcement and statutory updates. Mr. Chilton has been certified to provide HOA board member education courses by Florida’s Department of Business and Professional Regulation.
All are welcome. However, as space is limited, please contact the firm by January 20, 2020 to reserve your place.
On December 5, 2019, the firm was pleased to join with the Greater Bartow Chamber of Commerce in hosting, once again, a Very Merry Holiday Celebration. Many thanks to the chamber, the Grove in the Swamp BBQ Team, all of the elves at Terrie Lobb Catering and, of course, to Mr. Clause for making the long trip down from the North Pole. The event was a great success.
September 13, 2019 – Boswell & Dunlap LLP was elated to help sponsor the Polk State College Foundation’s Tenth Annual Wine for Wisdom fundraiser! The sumptuous California-themed event, which took place on September 12, 2019 at Polk State’s Winter Haven campus, was a smashing, sold-out success. Since its inception in 2010, Wine for Wisdom has raised more than $425,000 in student scholarships. Boswell & Dunlap LLP is privileged to be associated with such an important occasion.
Boswell & Dunlap LLP congratulates the nominees and winners of the 2019 Polk Emerging Leader Awards. The firm is proud to support the annual event, held in Bartow, and put on by the Winter Haven Chamber of Commerce in coordination with Endeavor Winter Haven, Emerge Lakeland and Engage Bartow. This event annually recognizes five emerging leaders from across Polk County for their contributions to our community, both personally and professionally.