Security check reminder: With all the news about the tragedy at Virginia Tech, it may be time for boards and management to spend a few minutes to inspect their common area property. I would not want to alarm the residents but just make them aware to be more observant and take a few extra minutes to look around their areas. Make sure that all doors and windows have working locks. If the association has electronic doors or gates with special key or cards, it may be time to change all codes and locks. I recently visited a delivery pizza parlor and on the wall behind the cash register in large letters was the security code posted for the drivers that delivered to a gated community near the shop. Most police departments will come to your community to talk to your owners about better safety measures and programs like crime watch, Combat Auto Theft (C.A.T.), and other programs your local police and sheriff departments may have. One of the articles that was in my file concerning security had the interesting coincidental quote: A recent study by the Metropolitan Institute, a think-tank at Virginia Tech University that studies urban issues, did not measure the safety of gated communities, but it did note that they are nationwide phenomenon. This was from an article by Mike Grogan, The Register, July 31, 2003. My point is that owners should not take the community security as the final word. While boards and managers need to inspect the common areas, owners should also evaluate their own homes.
Q. It seems that each time a question is raised concerning the governing association, your comment is that the management company is not responsible. Just what is the role of a management company? I thought they were to keep the association on the correct track. What I get is that even if the company gives bad advice, they are not responsible. — W.W., Hialeah
A. You must understand the difference between the terms responsibility, duty and fiduciary. The board of directors has the responsibility to operate the association. The officers (president, vice president, secretary and treasurer) have the duty to comply with the documents, the policies approved by the board of directors and the statutes. Management has the duty assigned by the board, usually in the form of a contract or/and the policies approved by the board of directors. In addition, all three (directors, officers and management) have fiduciary duties to the members. In addition to the duties, management must comply with the statutes as to their license (CAM) obligations. You must understand that the board of directors has the responsibility and they cannot delegate that responsibility. They can give, assign or contract the duties to others to operate the association. Since the directors have the responsibility, they must ensure that the officers and manager comply with the association regulations and duties, as the directors are responsible for all actions taken by others. Ever hear President Truman’s saying, the buck stops here? Well, that is the case with the directors. It is a correct statement that management is to keep the association on the right track; however, if the board does not want to follow the manager’s advice, the manager has two decisions. Either quit or yield to the board decision.
Q. Our association pays high legal fees for collections and rules enforcement. It seems to me that this places too much expense on the association. With regard to this expense, how can we reduce this cost? It would seem that the first as well as followup courses of action should have been a courtesy telephone call to the delinquent member or rules violators, (perhaps by the manager or treasurer) simply stating that for some reason the maintenance fee had not been received and take it from there. Normally, that will resolve the problem. — H.B., Hollywood
A. Legal expense is a cost of doing business for any corporation. In delinquent legal action, the legal costs should be added to the delinquent amount and paid by the owner. In rules violation action, if the association prevails in court, the judge will determine whether the violator must pay the legal expenses. As to making phone calls or knocking on a door to remind an owner of a problem, this is not a wise first step in any rule enforcement or delinquent situation. Not only do you face a situation of the owner becoming aggressive, you may find a condition that places a director, officer or manager in harms way. I have often said that the final authority of enforcement is the judge. If you make phone calls to enforce rules or to remind them of payments due, you have no proof that you made the call or to whom you talked. Collection calls may in fact violate the credit collections laws. Putting all demand letters in writing is the best way because not only is it a third party situation, it also remains proof that can be presented to the judge in case the matter goes to court. You say a call would normally resolve the problem. Well, there is that 1 percent of the people who will react violently and you do not want that developing. No personal face-to-face contacts or phone calls should be the policy. Put everything in writing.
Q. I read somewhere that a member of the condominium management corporation should never take the minutes of board meetings and membership meetings. Something about a conflict of interest. Do you have a comment? — D.F., Naples
A. I do not know where this rumor came from. I received several questions on the same matter. The board can appoint any person to take minutes. It does not need to be a director or officer. If the board feels the need, they can hire a public stenographer and pay to have the minutes produced. The question of a manager would depend on the manager and the board. As a manager, I usually insisted on taking the minutes. I feel I have more experience at taking and producing the proper document to be approved by the board. I will produce a draft copy within a couple of days and submit the draft copy to the board for their review. I see no conflict of interest if the manager takes and produces the minutes. Once the board members review the draft, I produce a final copy to by approved at the next meeting. In the final analysis, the board is responsible for approving the minutes regardless of who completes them.
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Richard White is a licensed community association manager in Florida. Questions should be mailed to him at 6039 Cypress Gardens Blvd. # 201, Winter Haven, Fl. 33884-4415; e-mail CAMquestion@cfl.rr.com. To be considered, questions and comments should include the author’s name and city. Questions should be about association operations, not legal matters.
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