This month’s edition of CUP is packed with insightful information. In addition to our featured articles, be sure to check out new episodes of the Take it to the Board Podcast including conversations with community association professional coach, Carmelo Millimaci, and Broward County Property Appraiser, Marty Kiar. Also, find out why it’s important to do your due diligence when hiring an attorney in this month’s Did You Know feature: “Why Hiring a Board-Certified Lawyer Makes Sense.”
Community associations are not healthcare or mental health providers, which can make it difficult to address situations where a resident may need extra care. Instead, associations must rely on help from family, friends, and governmental entities. Robyn Severs discusses what steps associations should take in this month’s featured article, “An Association’s Response to Those Persons Who May Need Some Additional Care in Living.”
Florida law has created a non-delegable duty for associations to maintain the “common elements,” which means boards are often tasked with the perpetual job of procuring and overseeing complex repair and renovation projects. Unfortunately, not every construction project goes as planned and when a defect is discovered, there is a delicate framework that should be followed. Learn more in, “Correcting User Error – How to Handle Construction Defects.”
“Do Robert’s Rules of Order Apply to Community Association Meetings?” Yeline Goin discusses when and if associations need to follow Robert’s Rules parliamentary procedures during board and owner meetings.
Is short-term residential rental of a home equivalent to commercial or business activity? This question is at the heart of THIS CASE. Find out more in “THIS CASE: Santa Monica Beach Property Owners Association, Inc. v. Acord.”
By: Robyn Severs
Some older individuals choose to live out their final years in their personal residences, alone, rather than in nursing homes or assisted-living facilities. Additionally, there are times that other residents may experience mental or physical health issues which make them unable to adequately care for themselves. Associations are often at a loss with how to handle these situations. Community associations are not healthcare or mental health providers, so they are not equipped to address such matters. Instead, associations will need to request help from family, friends, or governmental entities.
As we all know, condominium buildings suffer from wear and tear over time. Not only do communities withstand extreme weather conditions here in Florida, but they also experience extensive use over long periods of time. In fact, it is not uncommon to live in a condominium building that has been occupied for over half a century. Accordingly, Florida law has created a non-delegable duty for condominium associations to maintain the “common elements” of the condominium for the collective benefit and well-being of the association membership.
By: Yeline Goin
I have many times heard complaints from owners (and sometimes board members) that the association is not following Robert’s Rules of Order (“Robert’s Rules”) during their board and/or owner meetings. Robert’s Rules is a well-known manual of parliamentary procedures which dates back to the late 1800’s.
Santa Monica Beach Property Owners Association, Inc. v. Acord
219 So.3d 111 (Fla. 1st DCA 2017)
Is short-term residential rental of a home equivalent to commercial or business activity? This question is at the heart of THIS CASE. The covenants encumbering the parcels within the Santa Monica Beach community states:
Said land shall be used only for residential purposes, and not more than one detached single family dwelling house and the usual outhouses thereof, such as garage, servants’ house and the like, shall be allowed to occupy any residential lot as platted at any one time; nor shall any building on said land be used as a hospital, tenement house, sanitarium, charitable institution, or for business or manufacturing purposes nor as a dance hall or other place of public assemblage.
Based on this provision, the Santa Monica Beach Property Owners Association, Inc. (the “Association”) took the position that several owners (including Mr. and Ms. Acord) were violating the covenants by renting their homes on short term basis through VRBO. The Association filed a lawsuit for declaratory relief, asking the circuit court to construe and determine whether renting homes on a short-term basis violates the above-referenced covenant. The Acords filed a motion to dismiss, which the trial court granted. The Association appealed.
On appeal the Court stated that this issue was a case of first impression in Florida, but that no less than thirteen other federal and state courts had examined this issue, and all such courts found that the proper inquiry is not the duration of the rental, but rather the use of the parcel. In other words, was the parcel being used for residential purposes (even if for only a short time). If the answer is “yes” to this inquiry, then the covenant is not being violated. The Court distinguished this case from previous holdings regarding homes being used as, for example, bed and breakfast establishments or repeated wedding venues.
So why is THIS CASE important? If your community association wants to restrict short-term rentals, merely having a provision in your documents which prohibits the use of the parcel or unit for business purposes will not help the situation. Your association should discuss specific amendments to the applicable governing documents that expressly contemplate such limitations with your association’s attorney.
Question of the Month
Q: I read the articles summarizing the new law that addresses building safety for certain condominiums. In my condominium association, the owners are responsible for their windows, not the association. However, if I understand it correctly, the new law requires the association to reserve for window replacement. How will this requirement work in a community like mine where the owners are responsible for their windows?
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.
For more information, contact your Becker attorney.
CALLING ALL BOARD MEMBERS AND COMMUNITY MANAGERS
As leaders in Community Association Law, we not only helped write the law – we also teach it.
Did you know Becker provides over 200 educational classes per year throughout the State of Florida on a variety of topics ranging from board member certification to compliance, and everything in between? Our most popular classes are now available online!
IMPORTANT NOTE: Beginning Friday, September 16, our online class library will be unavailable while we work to process any outstanding CAM credits by the September 30, 2022, license renewal deadline. Our online classes will be available again in early October. Thank you for your understanding.
To view our entire class roster, visit:
As a service to the community and industry, we are pleased to offer some of our most popular classes online for you to participate in from the comfort of your own home.
- Turnover From Developer Control
- Insights Into Your Role as a Board Member: Fiduciary Duty & Business Judgement Rule
- 2022 Legal Update
- Anatomy of a Water Leak
- Budgeting & Reserves
- Collection and Foreclosure Strategies for Community Associations
- Condo Board Member Certification
- Construction Road Map for Community Associations
- Top 10 Manager Do’s and Don’ts
- Construction Contracts and the Lien Law
- Construction Projects Gone Wild
- Dealing with Difficult People
- Disaster Preparedness and Recovery
- HOA/Condo Board Member Certification
- How to Properly Run an Election
- Take a Bite out of Fraudulent Assistance Animal Requests
- Understanding Our Bylaws
Webinar: How to Navigate and Respond to the New Fannie Mae/Freddie Mac Temporary Guidelines for Condominiums
Fannie Mae and Freddie Mac amended their requirements that have resulted in lender questionnaires to be answered by associations and their managers that are ambiguous and impose potential liability. If the questionnaire is not completed the lender will not approve the loan to a buyer. But if the very broad questions are correctly answered that, too, may result in the lender declining the mortgage. Boards and managers must understand these new obligations and be prepared to answer the questionnaires properly.
Can They Do That?
Becker’s “Can They Do That” video series tackles some of the unique problems that homeowners and renters face today. We answer your 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?”
Becker Steps Up to the Mic with Podcast,
‘Take It To The Board with Donna DiMaggio Berger’
Think you know what community association life is all about? Think again. Residents must obey the rules, directors must follow the law, and managers must keep it all running smoothly. Take It To the Board explores the reality of life in a condominium, cooperative or homeowners’ association, what’s really involved in serving on its board, and how to maintain that ever-so-delicate balance of being legally compliant and community spirited. Leading community association attorney Donna DiMaggio Berger acknowledges the balancing act without losing her sense of humor as she talks with a variety of association leaders, experts, and vendors about the challenges and benefits of the community association lifestyle.
- Royal Service with James Donnelly
- Fiscal Finesse with Nicole Johnson-Pendergrass
- Nuisance or Necessary: Solving the “Pet” Problem with JoAnn Burnett
- The Technology Tango with Brett Fielo
- Community Immunity with David Ramsey
- Considering the Cost of Counsel with Denise Lash
- Rules & Refereeing with Howard Perl
- The Mental Health Challenge with Chris Ayub
- Reserve Funds & Studies with Robert Nordland
- Association Advocacy with Commissioner Mary Molina-Macfie
- The Job of the Journal with Michael Hamline
- HR Hacks with Jamie Dokovna – Part 1
- HR Hacks with Jamie Dokovna – Part 2
- The Art of Community Design with Patty Mowry
- Heart of Service with Stephanie Maher
- The Making of a Manager with Otto Freund
- Happy Holidays, Healthy Communities with Andrew Fortin
- Ensuring Community Association Safety with Platinum Group Security
- Building Basics with Construction Counsel Patrick Howell
- Keeping Cool with Jane Gilbert, Chief Heat Officer, Miami-Dade County
- 2022 Legislative Session in Florida Wrap Up with Yeline Goin, Becker & Poliakoff
- The Current Crisis with Florida’s Real Property Insurance with Andrea Northrup, Vice President of Insurance Office of America (Part 1)
- The Current Crisis with Florida’s Real Property Insurance with Andrea Northrup, Vice President of Insurance Office of America (Part 2)
- The Smoker’s Dilemma with Dennis Eisinger of Eisinger Law
- Assessing Collections with Joy Mattingly, Becker & Poliakoff
- Mapping the Terrain of Landscaping for Community Associations with Brian Steele, Director of Operations, East Coast Facilities
- Successful Community Association Living Starts With the Purchase Decision with Marisa DiLenge, Founder of DiLenge Real Estate Team (Part I)
- Successful Community Association Living Starts With the Purchase Decision with Marisa DiLenge, Founder, DiLenge Real Estate Team (Part II)
- To Lend or Not To Lend with Brewster Cole, First Vice President, Valley National Bank
- Florida Representative Dan Daley on How We Get the Laws We Get
- A Novel Approach: Coaching for Community Association Boards with Carmelo Millimaci, Senior Coach, Ackert Inc.
- Taxes, Taxes, and Fewer Taxes with Marty Kiar, Broward County Property Appraiser, Part 1
DID YOU KNOW?
Why Hiring a Board Certified Lawyer Makes Sense
By Steve Lesser
Consumers of legal services often seek to hire legal counsel for a variety of matters including a personal injury accident, divorce, a business dispute, real estate transaction, or probate matters. Finding the right lawyer can be challenging for the consumer that is often bombarded with television advertising highlighting certain lawyers, along with billboards, internet reviews, and recommendations from family and friends.
For consumers searching for the right lawyer on short notice, the process can be confusing and frustrating. In narrowing down choices, the consumer of legal services should consider hiring a board-certified lawyer who has already been vetted for expertise and professionalism in a legal specialty area.