Spring is the season of new beginnings and a reminder of how nice change can be. This month, we spotlight timely issues and provide guidance for you and your community to move forward. Our featured articles explore various topics from condo safety regulations and hurricane repairs to combatting growing hate crimes inside community associations.
Also featured this month is the board certification advantage. Did you know Becker has more board certified attorneys in Business Litigation, Construction, Real Estate, and Condominium & Planned Development Law combined than any other law firm in the state? Learn more about why this matters.
Associations and association managers routinely receive what are referred to as lender questionnaires. Are associations required by law to provide a prospective purchaser or lienholder with information about the association? Learn more in, “Lender Questionnaires” by Howard J. Perl.
Can homeowners’ associations continue with their “practice” of employing a two-notice, condominium-esque election, despite any lack of language in their governing documents permitting the same? Jennifer L. Biletnikoff discusses this in, “Director Elections in HOAs (i.e. Welcome to the Wild, Wild West).”
By: Howard J. Perl
Associations and association managers routinely receive what are referred to as lender questionnaires on a regular basis. A lender questionnaire is usually a request from a bank, lending institution or title company that requests the Association provide information about the community to the lender. Such requested information generally includes request for information concerning the community make up, collection procedures, community delinquency information, recreation areas, etc.
An increasing number of homeowners’ associations are adopting a two-notice, advance-nomination process for electing directors, similar to the election procedures statutorily dictated for condominium associations. Yet with many HOAs still operating with governing documents drafted by the developer, it is not uncommon to hear about situations where an association is running its condo-like election based on past practice rather than the procedures set forth in its governing documents.
By: Howard J. Perl
In condominiums and cooperatives, general proxies are used for establishment of a quorum and limited proxies are used to vote on a particular matter – amendments, waive reserves or financial reporting requirements, etc. It is only in homeowners associations when proxies may also be used for elections. Proxies and limited proxies are not secret. When returned in an envelope to the association, they can be opened in advance of the meeting.
Juno By The Sea North Condominium Association (The Towers), Inc. v. Manfredonia
397 So.2d 297 (Fla. 4th DCA 1981)(On Rehearing)
How to allocate the limited resource of parking spaces is at the heart of THIS CASE. Juno by the Sea North is a condominium building comprised of 70 units located on the east side of Highway A1A in Juno Beach, Florida. There are three parking areas used by the condominium occupants: a covered parking area located in the basement of the condominium building consisting of 20 spaces; an outside parking area directly adjacent to the building consisting of 50 spaces; and an area opposite the condominium building on the west side of A1A consisting of 27 spaces.
By specific provision in the declaration of condominium, the 20 covered parking spaces were designated as limited common elements; i. e., elements exclusively reserved for the use of a certain unit, which were assigned to individual unit owners for $2,000.00 each on a first-come first-serve basis. Thereafter, the developer, and subsequently, the condominium association, assigned the 50 parking spaces adjacent to the building to other unit owners who had not purchased covered parking. The association is responsible for the cost of maintenance of all three parking areas. The two open parking lots were designated in the declaration as common elements, but, unlike the covered parking, were not specifically designated as limited common elements.
For a short interval the association allowed “open parking” in the 50 space lot but that created such a controversial situation, according to the appellees, that the association promptly reenacted the rule assigning spaces in the 50 space lot to those unit owners who had not acquired covered parking spaces. This lawsuit followed. In entering judgment for the challenging owners, the trial court noted that the regulation appeared “logical” and “just” but held that the association had exceeded its authority.
For the initial appellate opinion, the appellate court agreed with the trial court that the association exceeded its authority by assigning the 50 outdoor common element parking spaces to the owners that did not have covered parking spaces. On rehearing, the court reversed its opinion. Specifically, the court stated:
We believe the regulation challenged herein is not only fair but makes good sense. Upon construction of Juno by the Sea, there were 70 parking spaces provided to unit owners in the immediate area of the condominium building. For an extra $2,000 each, 20 unit owners were able to secure the best of these 70 spaces; i. e., 20 covered spaces in the basement of the condominium building. Under the regulation, the remaining 50 unit owners, by virtue of either purchasing their units too late, or by choice, were left with parking in open parking spaces immediately outside the building. Additionally, 27 “spare” parking spaces located across the street were available to all the unit owners.
Accordingly, we do not think it was improper for the association, in devising an assignment plan, to consider, among other factors, the fact that 20 unit owners had already secured convenient, exclusive parking spaces within the condominium building. As noted, supra, the appellant was vested with the authority of regulating the use of the limited common elements; i. e., the covered spaces, as well as the common elements; i. e., the open parking. In addition, the expense of maintenance of the covered spaces as well as the open spaces is borne by the association. Under all these circumstances we believe this plan not only makes good sense, but appears to be the only reasonable alternative, short of total chaos, open to the association. As noted in Hidden Harbour, supra, “each case must be considered upon the peculiar facts and circumstances thereto appertaining.” We believe that under the peculiar facts of this case the regulation was reasonable and within the authority of the association.
So why does THIS CASE matter? Parking is a limited resource in a community association environment. The association, generally acting through the board of directors, can adopt reasonable rules and regulations regarding the common elements, especially when it is a limited resource issue. That said, the court here notes that what is (or is not) reasonable is determined on a case-by-case basis. Prior to enacting such restrictions, your association should have a conversation with its attorney.
Question of the Month
Q: My condominium building suffered significant damage from Hurricane Ian, including damage to the exterior of the building and the interior of the units. The association recently said that it will begin making various repairs, including repairs inside the unit. Is this permitted without my permission since this is property that I own?
DONNA DIMAGGIO BERGER DISCUSSES
NEW CONDO SAFETY REGULATIONS ON CBS12 NEWS
With numerous deadlines approaching following the collapse of Champlain Tower South in Surfside, Donna DiMaggio Berger, Shareholder and Community Association Practice attorney sat down with CBS12 News Investigative Team to discuss what condo owners should be doing to prepare.
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!
UPCOMING CLASS OFFERINGS:
- HOA/Condo Board Member Certification
03/14/23 – 10AM – Registration coming soon
- HOA/Condo Board Member Certification
03/22/23 – 4PM – Registration coming soon
- Understanding our Bylaws
03/28/23 – 10AM – Registration coming soon
- Condo Terminations
03/29/23 – 11AM – Registration coming soon
To view our entire class roster, visit: beckerlawyers.com/classes
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
- Taxes, Taxes, and Fewer Taxes with Marty Kiar, Broward County Property Appraiser, Part 2
- Parliamentary Procedure: How to Keep Your Meetings on Track with Parliamentarian Jim Slaughter
- Alternative Dispute Resolution with Jeffrey Streitfeld, Mediator
- Elevators & Electric Charging Stations with Todd Schwartz
- Fighting Fraud, Combating Cons, & Protecting Peace with Michael Reiter, Michael Reiter & Associates
- An Engineer’s Perspective on Implementing Florida’s New Condo Safety Law with Tim Marshall, Founder and President of A.T. Design
- Mitigating Reputational Risk with Laura Guitar, President of Reputation & Risk Advisors
- Radical Self-Care Can Change the World with Shelly Tygielski, Founder of Pandemic Love
- The Art of Negotating the Best Telecommunication Deal for Your Community With Marcie Gershoni, President at Community Cable Consultants
- Are “55 and Older” Communities Still In Demand? What Must Be Done to Preserve Your Senior Lifestyle? An Engaging Discussion with Mark Friedman, Becker & Poliakoff
- Combatting Growing Hate Crimes Inside Community Associations with Sarah Emmons, the Florida Regional Director of the Anti-Defamation League
- The Impact of Construction Next Door on Your Community with Katie Berkey, AICP, Becker & Poliakoff
DID YOU KNOW?
For the ninth consecutive year, Becker has earned your vote as a Diamond Level FLCAJ Readers’ Choice Award winner
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. We are very grateful to the readers, clients, and industry friends who put their confidence in us to educate, protect, and advance the interests of shared ownership communities of all types, sizes, and locations throughout Florida. We are proud to have the largest number of Florida community association lawyers under one roof who are recognized for excellence in the community association industry by virtue of their membership in the prestigious College of Community Association Lawyers (CCAL).
COMBATTING GROWING HATE CRIMES INSIDE COMMUNITY ASSOCIATIONS
Donna DiMaggio Berger sits down with Sarah Emmons, the Florida Regional Director of the Anti-Defamation League (ADL), to discuss recent incidents of hate symbols being placed inside community associations, how antisemitism takes root and what can be done to combat it. Specifically, Sarah and Donna discuss the 2022 Weston Hill’s hate crime that took place inside the upscale Hunters Pointe Park community. For over a month, residents were met with ongoing racial slurs and antisemitic messages written on their playgrounds and swastikas in and around the restrooms at the Weston Hills Country Club. Eventually, the Broward Sheriff’s Office were able to arrest three teenagers all of whom lived inside the Hunters Pointe Park community.
Congratulations to Dennis Reilley on Winning Our Survey Giveaway!
We appreciate your feedback! Thank you to Dennis for responding to our survey and congratulations on winning a $100 Amazon Gift Card.
We want to hear from you! Give us your feedback on an online program and one lucky winner will be selected each month. View our full online class library here.