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Community Update

January 2023

We hope that 2023 is off to a wonderful start! This month, we work through a wide array of issues so that you can rest assured your association is beginning the new year on a high note.

In this Issue

There are very specific statutory requirements for levying a special assessment in a condominium. Mark Friedman provides helpful guidance in, “Special Assessments.”

Is your association facing an enforcement problem? “Reviving Unenforced Restrictions” by Karyan San Martano explains all is not lost.

What is an impartial committee and what role do they play in the annual election? Joseph Arena discusses this and more in, “The Role of Impartial Committees in Condominium Elections.”

Ambiguity in covenants underlies the importance of, “THIS CASE: James v. Smith” by Jay Roberts. Find out why this case matters.

Tune into our Hurricane Ian recovery webinar series where Becker Shareholder Joseph Adams and other industry experts discuss what to expect when rebuilding and navigating forward.

Becker is thrilled to welcome seasoned attorney Jose Luis Baloyra as a shareholder in the firm’s community association and real estate practices.

If you have new members on your board or a new manager for your community and want them to be part of our Community Update, have them subscribe here:


Mark D. Friedman, Esq.
Mark D. Friedman, Esq.
Jay Roberts, Esq.
Jay Roberts, Esq.



Reviving Unenforced Restrictions

By: Karyan San Martano

The previous boards failed to enforce the provisions of the Declaration, bylaws, and/or rules and regulations of the community and now whenever the manager tells someone that they are in violation, the response is that the Association allowed this to occur for many years without enforcement. All is not lost. A previously unenforced restriction may be “revived” with a resolution of the Board that the Association will prospectively enforce the covenants, restrictions, and rules. 

Click here to read more!


Special Assessments

By: Mark D. Friedman

There are very specific statutory requirements for levying a special assessment in a condominium. Your governing documents must be reviewed to determine who votes on the special assessment (Board, membership, or both), and the notice period for the meeting at which the special assessment will be approved. Sometimes the notice period will be longer than the statutory minimum and the longer notice will control. 

Click here to read more!


The Role of Impartial Committees in Condominium Elections

By: Joseph Arena

The focus of this article is on impartial committees for the annual election. This committee tallies the votes that were cast and determines the outcome of the election. If selected in advance of the annual meeting by the Board, the committee may also verify outer envelope information in advance of the meeting.

Click here to read more!


James v. Smith
537 So.2d 1074 (Fla. 5th DCA 1989)

By: Jay Roberts, Esq.

Ambiguity in covenants underlies the importance of THIS CASE. Members of association of subdivision owners brought suit to enjoin lot owner from violating restrictive covenants in a deed. Specifically, the subject covenant stated:

No horses, mules, ponies, donkeys, burros, cattle, sheep, goats, swine or other like animals and no fowl, rodents or reptiles shall be raised on any lot, provided, however, that nothing herein shall prevent the keeping of a domestic pet.

The owner/defendant had two ponies.

The plaintiffs argued that the residential quality of the neighborhood should be preserved and that the term “domestic pet” should be given its plain meaning in a usual and ordinary sense, i.e., household pet. The defendant, on the other hand, argued that the restriction against ponies is qualified when they are kept as “domestic pets,” and that if the developer had not intended that some ponies might be kept as domestic pets, it would simply have stopped the sentence without the qualifying phrase. The court recited two common law maxims regarding enforcement of covenants:

  1. Substantial ambiguities in restrictive covenants will be resolved against the party claiming the right to enforce the restriction.
  2. Covenants are to be strictly construed in favor of the landowner and the free use of the property.

In applying these two common law rules, the court held that the restriction is vague, ambiguous, and confusing as to whether or not the developers intended the keeping of two ponies on the property would be precluded. Accordingly, the court ruled in favor of the owner/defendant, and refused to enforce the covenants in a manner which ousted the ponies.

So why does THIS CASE matter? It is vitally important that care be taken in the drafting of covenants. At Becker we believe that governing documents should be re-written after the developer is out of the community to ensure that the restrictions are unambiguously enumerated. If your association has potential ambiguity issues in its governing documents, you should contact the association’s attorney to discuss how best to address that concern.

Question of the Month

Q: The board of directors of my condominium association has stated they are considering major restoration projects soon and have stated that they are considering a loan from a bank to fund part the projects. While nothing has been decided, the board has mentioned that considering a loan to pay for the work. Does the board have to get approval from the members before taking out a loan?

Joseph Adams discusses this and more!



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.



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!


  • The Ins and Outs of Florida’s New Condominium & Cooperative Safety Law 
    02/01/23 – 11AM – REGISTER NOW

To view our entire class roster, visit: beckerlawyers.com/classes


David Rogel Featured on NBC 6

Becker Shareholder David Rogel sits down with NBC 6 to discuss the impact of the new condo safety law and how older Florida communities will be affected by reserve funding requirements.

Watch the full segment here.

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?”

Catch up on past episodes from this series here.


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

Click here to visit “Take It to the Board”



Becker Expands Community Association and Real Estate Practices With Jose Luis Baloyra in Miami

Becker is thrilled to announce that Jose Luis Baloyra has joined the firm as a shareholder in the firm’s community association and real estate practices and is resident in the firm’s Miami office.

Mr. Baloyra provides counsel to condominium and homeowner associations and has been involved in all aspects of community association law. His work with these communities includes covenant enforcement, document review and drafting, analysis and review of bank loans and general guidance to boards and managers on the statutory and documentary guidelines for the ongoing administration of their association. Additionally, he advises investors, individuals, financial institutions, commercial banks, condominium associations, and developers on all aspects of residential and commercial real estate.



For those of you recovering from Hurricane Ian, our hearts are with you and our team is here to help. Different locales face different issues, so this webinar series is tailored for your community’s needs. Our esteemed panel of attorneys and guest speakers will explore what we know, what we don’t know, and what we expect. This interactive discussion will cover the FEMA 50% rule, Zoning and Floodplain regulations, Handling Insurance Claims, Project Management, Emergency Powers, Property Taxes, and more. This content has been separated into three different programs:

Rebuilding The Islands After Ian: What We Know, What We Don’t Know, What We Expect

Joseph E. Adams, Becker
Sanjay Kurian, Becker
Aaron J. Pruss, Becker
Stephen Lodwick, Island Management Group
Craig Albert, Sanibel Captiva Community Bank
Craig Mole’, City of Sanibel

Fort Myers Beach
Navigating the Way Forward After Ian: Twists and Turns in the Road to Recovery

Joseph E. Adams, Becker
Aaron J. Pruss, Becker
Sanjay Kurian, Becker
Ellyn S. Bogdanoff, Becker
The Honorable Matt Caldwell, Lee County
Rudi Hamer, Sanibel Captiva Community Bank

Lee County
Navigating the Storm of a Lifetime, Hurricane Ian: Where We Have Been, Where We Are, Where We Are Going

Joseph E. Adams, Becker
Aaron J. Pruss, Becker
Sanjay Kurian, Becker
Shawn McNulty, Lee County
Kyle DeCicco, Sanibel Captiva Community Bank