Stay up to date with Becker’s dedicated resource page on COVID-19. We are updating the information on this site on a daily basis. All information is posted to educate and inform our clients but does not constitute specific legal advice for your community. Please consult your Becker attorney for questions specific to your own community. CLICK HERE
A Message from the Editors: Mark Friedman, Esq. and Jay Roberts, Esq.
It is with great pleasure that we assume the editorship of Becker’s monthly Community Update (CUP) newsletter. Our vision for the future of CUP includes building upon and broadening the insightful and informative content that we already strive to deliver to you each month. To that end, we are thrilled to debut a new monthly feature in this edition called “THIS CASE.” Each month, we will highlight a specific case and provide real-world application for boards and community managers alike to take note of. We hope you enjoy!
We will also be providing some of our regular, non-pandemic related programming in this edition as we realize that many community issues continue despite the current climate. For in-depth information on navigating COVID-19, we urge you to visit our dedicated resource page, BeckerCOVID19.com, which is updated on a daily basis.
In closing, we would like to wish you, your families, and colleagues continued health and safety during this unprecedented time. Please know that your Becker attorney is only a call or email away – we are here to support you during this challenging time.
Mark Friedman and Jay Roberts are Shareholders in Becker’s Community Association Law Practice. Both are Florida Bar Board Certified in Condominium and Planned Development Law, a designation held by only 190 attorneys in the state of Florida.
In this Issue
Our featured article, “Obtaining a Bank Loan; Step-by-Step,” explores the process of attaining a line of credit. A loan can help an association ensure they have necessary funding to navigate through an emergency, whether it be due to the coronavirus, hurricane season, or otherwise.
We live in an age where the lack of civility has become a common occurrence in daily life, whether it be on the internet, on the highway, or even in line at the grocery store. For tips on dealing with rampant incivility that also extends into your community read, “Is Incivility Having an Impact on the Operation of Your Association?”
Is flying the Gadsen, “Don’t Tread on Me,” flag in your community allowed? The short answer is: it depends. Find out why in, “Don’t Tread on Me”: The Permissibility of the Gadsden Flag in Your Community.”
Lastly, “THIS CASE: Why does it matter?” delves into a case matter that questions the applicability of unit owners enclosing their balconies without prior approval from their association. Find out why THIS CASE matters.
Mark D. Friedman, Esq. & Jay Roberts, Esq., Editors
Obtaining a Bank Loan; Step-by-Step
With COVID-19 stay-at-home executive orders causing issues with employment and payment of assessments in some communities and with hurricane season quickly approaching, many associations may want to have a line of credit in place. This ensures they have the funds …Continue Reading →
Is Incivility Having an Impact on the Operation of Your Association?
We live in an age where the lack of civility has become a common occurrence in daily life, whether it be on the internet, on the highway, or even in line at the grocery store. While the causes of the …Continue Reading →
“Don’t Tread on Me”: The Permissibility of the Gadsden Flag in Your Community
Is flying the Gadsden flag (i.e., the yellow “Don’t Tread on Me” flag with a snake) considered a flag of the United States of America and is it permissible in your community association? It depends.
For those not …Continue Reading →
Welcome to a new, regular, feature in CUP. Each month, “THIS CASE” will highlight and discuss an appellate decision or arbitration opinion dealing with community association legal issues and briefly discuss the impact of the decision on communities in general. We hope you enjoy!
Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc.
481 So.2d 29 (Fla. 3rd DCA 1986)
The Brickell Place Declaration of Condominium included a provision which precluded owners from enclosing their balconies without prior approval from the association. However, until 1981 the restriction had never been enforced and as many as 45 owners had enclosed their balconies without authorization. After learning that the balcony enclosures violated the City of Miami’s zoning ordinance, the association informed the owners that moving forward it would apply the prohibition on all future balcony enclosures, but take no action with respect to the existing balcony construction.
A unit owner, Chattel Shipping and Investment Inc., enclosed its balcony after the announcement of the association’s rule, and the association sought injunctive relief (having the court force someone to do something) to impose the restriction and remove the enclosure. The owner’s argument was that the association was “selectively enforcing” the enclosure restriction against it. Neither the trial court nor the appellate court sided with the unit owner – but why?
The Third District Court of Appeal clarified that selective enforcement is based on the concept of estoppel. Specifically, estoppel applies where “previous non-enforcement has led to expenditures made in justified reliance on the continuation of that policy.” The court reasoned that the principle of estoppel has no application where the association gives notice that only subsequent violations will be prohibited because in those instances there has been no reliance on the status quo of non-enforcement.
So, why does THIS CASE matter? There could be instances in your community where certain covenants or rules have not been uniformly enforced in the past. THIS CASE stands for the proposition that an association can cutoff a potential selective enforcement argument by reaffirming the specific restriction and giving notice to the membership that the restriction will be uniformly enforced going forward. That is the easy part. The hard part is that you must follow through and uniformly enforce the restriction! This type of board resolution should be drafted by your legal counsel so you do not inadvertently grandfather other violations that you may be attempting to enforce.
Question of the Month
Q: My condominium association board voted to close the swimming pool in late March due to the COVID-19 threat. A few days later Governor DeSantis signed the “Stay at Home” Order and specifically defined “swimming” as an essential activity. Does this mean that my condominium’s swimming pool closure is overturned by the Governor’s Order?
Shareholder David Muller, Esq. discusses the answer to this and more.
Can They Do That?
There are cracks in the stucco on the outside of my unit and my association wants to paint over it. It looks like it could be a more serious issue, but they say not to worry about it. Can they do that? Find out the answer in this month’s episode!
When it comes to association rules and bylaws, there seem to be more questions than answers. Becker’s video series, “Can They Do That?” tackles some of the unique problems that homeowners and renters face today. We answer questions, no matter how far-fetched they may seem. From service animals to nudists in your community, we get to the bottom of it and let you know – “Can They Do That?”
Don’t miss out on new episodes of “Can They Do That?”
Subscribe to Becker’s YouTube channel!
Becker Awarded FLCAJ Readers’ Choice Award
For the sixth consecutive year, Becker has earned a Diamond Level Readers’ Choice Award from the Florida Community Association Journal (FLCAJ) magazine. The FLCAJ announced its seventh annual Readers’ Choice Award winners in the March 2020 issue of the magazine.
The FLCAJ Readers’ Choice Awards is a unique recognition program that shines a spotlight on the positive and productive contributions by community association service providers across Florida. They are presented to service providers that demonstrate their commitment to the community associations they serve an exemplary level of proficiency, reliability, fairness, and integrity.
Kathleen Berkey Recognized Among eBella Magazine’s “Winning Women”
Kathleen Berkey, Esq. was featured in the April 2020 issue of eBella Magazine as one of their “Winning Women” for her work as a top attorney and environmental activist.
As a child in rural Redding, Connecticut, Kathleen would often hear her parents discuss real estate development issues related to historic preservation and the environment. She says this is where her love for land use really began. As a shareholder and certified land planner at Becker her work focuses on the balance between development and protecting limited natural and historical resources. In her spare time she volunteers for causes that she feels passionate about including serving at the executive level of the non-profit Keep Lee County Beautiful as well as for the Urban Land Institute.
Read more about her achievements in the latest issue of eBella Magazine, available digitally and in print at eBella magazine.
Opinion: Condos and HOAs Should Avoid Rushing to Open Common Areas
Originally published in the April 22, 2020 edition of the Miami Herald.
With Jacksonville beaches now open for limited purposes and more to follow in the coming days and weeks, members of your private residential community may be even less tolerant about common amenities remaining closed. However, convenience must always be subordinated to life safety.
The same steps used by your board to evaluate when and how to close your common areas to combat the spread of Covid-19 in your community should be employed to determine their reopening.
Community association boards in Florida have followed cues from state and local government and heeded the advice of medical and management professionals and association counsel when crafting and enforcing pandemic protocols. Despite taking steps to safeguard community residents, some boards have been subjected to legal threats and pushback from residents who are less inclined to see the big picture.
Will these boards be able to withstand that pressure and continue to see their protocol through to its logical conclusion?
Steven H. Mezer Named to Tampa Magazines’ 2020 Top Lawyers List
Becker Shareholder Steven H. Mezer, Esq. was voted by his peers as one of the Tampa Bay area’s top community association law attorneys on Tampa Magazines’ 2020 Top Lawyers list.
In February, Tampa Magazines sent surveys to the nearly 7,000 attorneys practicing in Hillsborough County, asking them to nominate the peers they believe stand out from the rest. Tampa Bay attorneys chose 153 of their peers from 84 practice areas as this year’s Top Lawyers.
Statewide Suspension of Community Association Classes
Becker has been closely monitoring the latest coronavirus (COVID-19) developments. In the continued interest of the health and safety of our clients and colleagues, we have made a decision to continue the suspension of all Community Association classes through the end of May 2020.
As always, we will keep you informed of any changes and updates.
Did You Know?
Becker is now offering a FREE Online Board Certification Class for Board Members Only!
We hope you are staying safe and healthy during this unprecedented time. As a service to the community and industry, we are pleased to make our HOA/CONDO Board Member Certification class available to you online.
RECENT & UPCOMING WEBINARS
Close to Home: How Your Neighbors are Overcoming COVID-19 Series
Becker Shareholder Jay Roberts, Esq. is joined by Fiona DiDomenico, Senior Vice President of Castle Group for this webinar. Watch the replay.
Citizens Association of Palm Beach Webinar: COVID-19 Panel Discussion
Becker Shareholder Ken Direktor, Esq. appeared on a “virtual” event for the Citizens Association of Palm Beach, which offered meaningful guidance on COVID-19 and community associations. Watch the replay.
COVID-19: How to Protect Your Community
Becker Shareholder Patrick Howell, Esq. appeared on the ASCEND webinar, “COVID-19 How to Protect Your Family,” speaking alongside SERVPRO owner, BrIan Wagler, and moderator, Frances Grinstead, a national speaker and trainer for infection prevention in high traffic facilities. Watch the replay.
Busier Than Normal Hurricane Season Predicted: Are You Prepared?
AccuWeather, Colorado State University, The Weather Company and seven other leading organizations have all predicted a busier than normal hurricane season this year, per a recent article in the SunSentinel. While an average season produces seven hurricanes, it has been forecasted that we could see up to nine this year.
Early forecasts, meaning those that come prior to June 1, can often be unreliable, but scientists have more confidence in their predictions this year because the probability for El Niño is low. The ocean-atmospheric interaction produces a wind shear that helps to prevent hurricanes from forming in the Atlantic. Without this phenomenon, we can generally expect an above average hurricane season.
As such, community association boards and managers should ensure that their communities have adequate disaster planning measures in place as hurricane season approaches. To help you in weathering the storm, check out Becker’s Hurricane Guide which provides important tips and information to help protect your community.