This month, we shine a spotlight on potential issues for community associations. From developer turnover to litigation to new laws regarding emotional support animals, we provide practical guidance to help steer you and your community in the right direction.
Holding political events are afforded a limited degree of protection under the Florida Condominium Act. Marty Platts discusses what the statute says in, “Does Your Association Allow You to Use the Clubhouse for Political Events?”
If your association is looking to obtain a loan, do not start the borrowing process without a discussion with your attorney. Mark Friedman addresses reoccuring issues with obtaining a loan in, “Borrowing Money.”
Other than political debate, perhaps nothing else evokes more of an “emotional” response than the issue of emotional support animals in a no pet community. Howard Perl explains the “New Laws Regarding Emotional Support Animals” and how your community may be affected.
Since the earliest days of condominium associations, questions have arisen over the extent of the condominium association’s authority to impose restrictions on the use of the condominium property. “Beachwood Villas Condominium v. Poor” by Jay Roberts considers the validity and enforceability of board-adopted rules.
Does Your Association Allow You to Use the Clubhouse for Political Events?
By: Marty Platts
Florida Statutes allow the Condominium unit owners to use the common elements for the purposes for which the common elements were intended as long as their “use does not hinder or encroach upon the lawful rights of other unit owners.” The statute also permits the Board of Directors to create and adopt reasonable rules pertaining to the use of the common elements. If your community has such facilities, the Board (assuming it has rule making authority) should create guidelines addressing the proper private use of the facilities.
New Laws Regarding Emotional Support Animals
By: Howard J. Perl
Nothing evokes more of an “emotional” response than the issue of emotional support animals in a no-pet community. While this is not a new issue, and has been discussed many times in this forum and others, Florida laws affect how a community handles a request for a reasonable accommodation to its governing documents, rules and regulations or policies to allow a resident to maintain an emotional support animal in a no-pet community.
By: Mark D. Friedman
We have been receiving a number of loan requests. Even though we’ve done articles in this forum regarding association borrowing in the past, there are some issues that keep reoccurring. Do not start the borrowing process without a discussion with your attorney.
Beachwood Villas Condominium v. Poor
448 So. 2d 1143 (Fla. 4th DCA)
Since the earliest days of condominium associations, questions have arisen over the extent of the condominium association’s authority to impose restrictions on the use of the condominium property. The courts have long recognized that there are two types of restrictions, those contained in the declaration of condominium and the rules adopted by the board of directors. Restrictions contained in the declaration of condominium are “clothed with a very strong presumption of validity” and can be unreasonable so long as they are not wholly arbitrary in in their application, in violation of public policy, or that they abrogate some fundamental constitutional right. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979). However, board-adopted rules are subject to greater scrutiny by the courts.
In reviewing the enforceability of board made rules, the Fourth District Court of Appeals, in Beachwood Villas Condominium v. Poor, 448 So.2d 1143 (Fla. 4th DCA 1984), articulated the test to be used in determining whether a Board-made Rule is enforceable. The Beachwoods Villas case involved a challenge to the enforceability of two board-adopted rules which regulated the rental of units and the occupancy of units by guests, respectively. The trial court found that the board lacked the authority to adopt either rule. On appeal, the Fourth District reversed, and in doing so announced the test to be used in determining if board adopted rules are valid and enforceable.
In considering the validity of the rules adopted by the association, the Fourth District held that the Board had rule making authority in the condominium documents; and the rules did not contravene any right granted by, or reasonably inferable from, the declaration. Therefore, the court held that the rules were valid. The court also noted that rules can be found to be invalid when they are unreasonable or arbitrary. However, as these issues were not raised before the trial court, it was not an issue reviewed on appeal.
So why does THIS CASE matter? This case matters because it announces the legal test used to determine if a board-adopted rule is valid and this is the test that is still used today.
The test announced by the Beachwood Villas Court is as follows:
- The board of directors must be granted rule-making authority in the condominium documents; and
- The rule cannot conflict with any right contained within the condominium documents, nor any right which is “inferable” there from; and
- The rule must be “reasonable” and not discriminatory.
While not discussed by the Beachwood Villas Court, a “fourth” test which needs to be considered in connection with any board-made rule is that it be adopted in a procedurally correct manner. Subject to stricter requirements in your governing documents, rules regarding the use of the common elements or limited common elements can be approved at a board meeting with 48 hours’ notice. The notice of a board meeting where rules regarding unit use (in a condominium) or parcel use (in an homeowners’ association) are to be consisted must be posted and mailed, delivered, or electronically transmitted to each owner at least 14 days before the meeting. Always check your documents to ensure that unit owner approval is not required.
Question of the Month
Q: After the developer transfers control of the condominium association to the unit owners, can the association increase the assessments for the common expenses only against the developer owned units to cover the costs of repair for construction defects?
WOMEN’S HISTORY MONTH
Becker celebrates Womens History Month, by not just honoring the trailblazing women who changed history but by encouraging new generations to dream big and know that anything is possible.
We would like to recognize our women attorneys who help to elevate the firm. We are proud of their relentless commitment to serving our clients in the best way possible.
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!
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
- A Discussion on Successful Real Estate Design in the Luxury Space with TRUMP!
- We’re Not Just Droning On – A Conversation with Drone Experts Chris Tonn and Neil Johnston On Your Community’s Potential Challenges with Drones
- Copyright Consequences You Need to Know with Dave Davis and Scott Templeton of Motion Picture Licensing Corporation
DID YOU KNOW?
Becker & Miami Law Welcome Florida Supreme Court Justice John D. Couriel to the Alan S. Becker and Gary A. Poliakoff Preeminent Leaders in Law Speaker Series
Established in honor of the firm’s founding members (Becker, J.D. ’69 and Poliakoff, J.D. ’69), the Alan S. Becker and Gary A. Poliakoff Preeminent Leaders in Law Speaker Series connects those seeking to understand the complexities of the law with legal practitioners who have real world experience applying the law in a variety of contexts. Hosted semi-annually, the Series offers insight into the challenges, opportunities, and rewards of practicing law. This year’s event will take place on Tuesday, April 18, 2023, at 6:00 PM. If you would like to livestream the program, click here for access.
LET’S HAVE A TALK ABOUT DEPOSITIONS
NEFL CAI Chapter Community Connection
By: Kaylin Martinelli
Whether you are a property manager, board member, or homeowner, the likelihood of being involved in litigation is ever-increasing. The COVID19 pandemic has brought a wave of litigation throughout the country, with homeowners’ association related issues being a hotbed. One inherent aspect of that litigation involves the litigants taking depositions.
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