This issue of CUP brings a range of topics for board members and managers. Whether you’re wondering how to handle fines, need practical tips to initiate the safeguarding of your investments, or struggling with a construction defect, we’ve got something for you. Don’t miss our featured podcast episode where Howard Perl sits down with host Donna DiMaggio Berger to discuss the benefits of rigorous board member education.
What if there is a leak in the unit; whose insurance covers the damage? Mark Friedman discusses the three parties involved in this helpful article, “Damage to Units.”
Community association officers and directors have a fiduciary relationship to the owners of homes or units in their community. Joseph Arena helps navigate this complicated and misunderstood relationship in, “Fiduciary Relationship and the Business Judgment Rule.”
Can a non-owner be a Board member in a condominium? The answer: it depends. Mark Friedman explains the Florida statute in the article, “Who May Run for the Board?”
Community associations are generally governed by four governing documents and there is hierarchy amongst the documents. Jay Roberts emphasizes the importance of amending the correct governing document in, “THIS CASE: Joy v. Oaks Club Corp.”
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:
EDITORS
BOOTS ON THE GROUND NEEDED!
Join the ranks of the enlightened and attend Board Member Boot Camp, a fun and interactive military-themed Board certification course designed to assist volunteer board members in fulfilling the duties that come with serving on their association’s board.
This popular program covers a wide range of topics both veteran and new board members need to know in order to safely and efficiently operate and administer their communities.
By: Mark D. Friedman
What if there is a leak in the unit; whose insurance covers the damage?
There are usually three parties to this type of situation: 1) the owner who caused the leak; 2) the other owners damaged by the leak; and 3) the Association. All three parties should put their insurance carriers on notice. The Association is responsible for all portions of the condominium property as originally installed or replacement of like kind and quality in accordance with the original plans and specifications and any alterations or additions made to the condominium property or association property as a material alteration to the common elements.
Fiduciary Relationship and the Business Judgment Rule
By: Joseph Arena
Community association officers and directors have a fiduciary relationship to the owners of homes or units in their community. Typically, this relationship is understood as officers and directors having the obligation to act in the best interests of the association and to refrain from obtaining or accepting personal benefits at the expense of the association. In practice, this relationship is complicated, can be misunderstood, and is sometimes raised by community members who seek to complain and/or make accusations arising from board decisions with which they disagree.
By: Mark D. Friedman
Can a non-owner be a Board member in a Condominium?
Every year this question comes up in one form or another. In some cases, it is a spouse who is not on the deed who wants to be on the Board. In other cases, someone who is on the Board moves away but his/her term is not up.
The answer: it depends.
Joy v. Oaks Club Corp.
343 So.3d 632 (Fla. 2d DCA 2022)
Amending the correct governing document is at the heart of THIS CASE. The declaration of condominium required a mandatory club membership in a community club. The declaration only required that all unit owners also be members of the community club. In 2015, the club amended its bylaws to require that if any owner purchased additional units in the condominium, they would also have to purchase additional membership interests in the club. In 2017, an owner of a unit in the condominium sought to purchase a second unit and was informed of the club’s bylaws amendment. The unit owner walked away from the sale, and sued the club claiming that the bylaws amendment was invalid as conflicting with the declaration of condominium. The unit owner filed a motion for summary judgment, which was denied, and the unit owner appealed.
On appeal, the court held that: (1) declaration is a superior document to the bylaws; (2) that the declaration had not been amended to provide for the requirement to purchase additional club membership interest; and (3) that the bylaws amendment was invalid as conflicting with the declaration.
So why is THIS CASE important? Community associations are generally governed by four governing documents and there is hierarchy amongst the documents. Those are: (1) the declaration; (2) the articles of incorporation; (3) the bylaws; and (4) the rules and regulations. To the extent there is a conflict in any of the foregoing documents, Florida law is clear that the higher document shall control the conflict. If your association is in need governing document amendments, it is imperative to have a competent Florida attorney advise on which document needs to be amended to meet the purpose of the amendment, and how the amendment should be drafted.
QUESTION OF THE MONTH
Q: You had previously written about some new changes that are coming up about how to handle fines in homeowners’ association. Can you give a brief summary of what we need to do?
TIME FOR A FINANCIAL CHECK-UP
When did you last take a close look at your investment account statements, have a meaningful discussion with your financial advisor or broker, or reassess your investment goals and time horizon due to changing circumstances or major life events?
These questions often slip our minds as we navigate our busy lives and process a constant influx of information. But if you stop and think about it, beyond tending to our health, our financial well-being should be a priority for most of us. Whether you’re a young adult starting out, preparing for retirement, or already retired, having a sound financial plan and an experienced team to help implement it is vital.
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!
To view our entire class roster, visit: beckerlawyers.com/classes
UPCOMING CLASS OFFERING:
- Construction Projects Gone Wild
11/06/23 – 11:00AM – Registration coming soon - Architectural Control and Enforcement for HOAs
11/09/23 – 11:00AM – Registration coming soon - Turnover from Developer Control
11/16/23 – 11:00AM – Registration coming soon - How, When and Why to Pass a Special Assessment
11/21/23 – 11:00AM – Registration coming soon
FEATURED TESTIMONIAL
“We always try to have at least one Board Member attend your updates. We could not get through our difficult times if it were not for you all. You are always there for us. We have been associated with you for 20+ years, so that proves you are doing something right.”
~ Sue Armbruster, Deep Creek Gardens Condominium Association, Inc.
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. Don’t have a streaming app? You can now find all episodes on YouTube! Click here to listen now.
RECENT EPISODES:
- Examining the Challenges Community Association Attorneys Face and the Corporate Responsibility Community Associations Shoulder with Marcia Narine Weldon, Law Professor
- We’re Having a Heat Wave – The Physical and Mental Impacts from Extreme Heat and What Your Community Should Do with Dr. Jason Mansour, Medical Director at Broward Health Medical Center’s Emergency Department
- Legal Resilience – Fostering A Growth Mindset for Lawyers Amidst Mental Health Realities with Professor Marcia Narine Weldon, Director of Transactional Skills Program and Lecturer at the University of Miami School of Law
- Medical Marijuana and ESA Trends – Checking in Again with FHA Expert JoAnn Nesta Burnett
- Lessons in Leadership – A Discussion with Becker’s Managing Partner, Gary Rosen
- Checking In On Background Checks: What’s In, What’s Out and What’s Questionable? with Robert E. Sanchez of Sarma
- Boot Camp for Board Members: Army Vet, PCAM and Becker Shareholder, Howard Perl, Discusses the Benefits of Rigorous Board Member Education
- Pesky Critters in Your Community? Top Tips From Wildlife Expert and Trapper Todd Hardwick
Boot Camp for Board Members: Army Vet, PCAM and Becker Shareholder, Howard Perl, Discusses the Benefits of Rigorous Board Member Education
Becker Shareholder, Howard Perl, sits down with host Donna DiMaggio Berger to share his experiences as both an army veteran as well as a successful PCAM before going to law school later in life. Howard recounts his unique journey from joining the army at 17, to participating in Operation Iraqi Freedom to how his military background inspired Becker’s Board Member Boot Camp, a unique military-themed board certification course. Howard’s valuable insights, as both a veteran and a PCAM, are a reminder of how impactful life experiences can equip association board members and management professionals for the many challenges they face.
BECKER & POLIAKOFF NAMED AMONG SOUTH FLORIDA’S TOP 100 PRIVATE COMPANIES BY SOUTH FLORIDA BUSINESS JOURNAL
Becker & Poliakoff is proud to announce its recognition as one of South Florida’s Top 100 Private Companies by the South Florida Business Journal. This accolade reflects Becker & Poliakoff’s deep ties to Florida and unwavering commitment to excellence, innovation, and growth.
The South Florida Business Journal’s annual list of the Top 100 Private Companies is a celebration of local businesses that make significant contributions to the South Florida community. The selection process encompasses various criteria, including revenue growth, financial stability, and community involvement.
CONGRATULATIONS TO JAMES PERISO ON WINNING OUR SURVEY GIVEAWAY!
We appreciate your feedback! Thank you to James for responding to our survey and congratulations on winning a $50 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.
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DID YOU KNOW?
With one of the largest, dedicated teams of Board Certified Construction attorneys, Becker’s Construction Law Practice Group is well-known nationally for its knowledge of the construction industry and experience effectively protecting the interests of its clients.
For more than five decades Becker’s attorneys have been helping communities pursue their rights against developers and design professionals for defects associated with new construction renovation and repair projects. We understand that the more time you spend negotiating and drafting your construction contracts, the less time you’ll spend fighting the results afterwards.
Chambers USA, one of the legal profession’s most prestigious ranking directories, has recognized the Firm’s Construction group every year since it began publishing its global law firm ranking guide. While we are honored to be one of four Florida-headquartered firms recognized in the preeminent Band 1 position, we are most proud of the work we do every day on behalf of our clients.
