It may not quite feel like it yet in Florida, but Fall is officially here. This of course means busy season has arrived for many associations as residents head south for the winter months. Check out this month’s issue for several informative articles to help set your board up for success. Also, be sure to tune in to all new episodes of Becker podcast, Take It To the Board, and don’t miss this month’s “Did You Know?,” section to learn more about the firm’s newly launched Sea Level Rise Advisory Team.
Interested in saving time and money? We thought so! If your association is in search of a bank loan, look no further. Our featured article, “Borrowing Money,” highlights several common pitfalls to avoid.
While condominiums and HOAs both fall into the category of a community association – they are not in fact the same. “Homeowner Association Confusion & Frequently Asked Questions,” discusses the differences between the two.
By: Joseph Arena
In condominium associations throughout the state, it is common for there to be seasonal unit owners who leave their units unoccupied during portions of the year. For associations faced with periodically unoccupied units in multifamily condominium buildings, there are distinct legal issues worth considering in advance of problems arising.
Although the term community association encompasses different types of community associations, in Florida, the two predominant forms of community associations are homeowners associations and condominium associations. There are vast differences but also numerous similarities between the two. Unfortunately, this can cause confusion when owners, directors, and/or managers assume the two are the same. Simply put, they are not.
Enegren v. Marathon Country Club Condominium West Ass’n, Inc.
525 So. 2d 488 (Fla. 3d DCA 1988)
By: Jay Roberts
Whether an association can be equitably estopped from enforcing certain restrictions is at the heart of THIS CASE. In January 1985, the board for Marathon Country Club Condominium West Association, Inc. (“Association”) adopted a set of rules and regulations which stated that boats larger than 25 feet could be docked as long as space was available. Edbury Enegren (the “Owner”) was given a copy of the rules, and in April of 1985 purchased a 44-foot trawler which he docked at the Marathon boat docks starting in mid-November.
After learning that the rule had not been adopted in accordance with the procedure requiring membership consent, the board held a vote in January 1986 and returned to the prior iteration of the rule that had limited use of the docks to boats of 25 feet or less. Although the board gave notice to the Owner directing him to move his boat in accordance with the “new” rules and regulations, he was allowed to remain at the condo docks for the ’85–’86 winter season. However, upon his return in the fall of 1986, the board refused dockage, despite continued availability of space. The Owner filed a lawsuit seeking declaration from the court that the Association should not be allowed to enforce the new docking restriction against him. The trial court ruled in favor of the Association, and the Owner appealed.
The Appellate Court overturned the judgment for the Association on the basis that the elements of equitable estoppel had been established by clear and convincing proof. A party asserting estoppel must show: (1) the party to be estopped made a representation of material fact and later took a position contrary to that representation; (2) the party claiming estoppel relied on this representation; and (3) that party suffered a detrimental change in position as a result of this reliance.
Here, the 1985 “size of vessel” regulation was represented to the Owner as being in full force and effect. This amounted to a representation of material fact that dockage space for vessels over 25 feet would be available. The Owner relied upon this representation, changing his position to his detriment, when he purchased a 44 foot vessel. The Court found that because the Association knew or had reason to know that the Owner would rely upon the rules and regulations as presented, it was estopped from enforcing the size regulation as against that particular owner. Rejecting the trial courts analysis, the Third District noted that ambiguity in the governing documents should be construed against the Association. In addition, the trial court erred in finding the Owner’s reliance was not reasonable. Although the majority opinion did not address whether reasonable reliance is required, the Court found that here the Owner was given a copy of the rules which specifically addressed dockage and therefore his reliance on those rules was “not only natural, but reasonable.” Finally, the Court found that neither the weight of the parties’ relative interests, nor the size of the injury, was relevant in determining whether equitable estoppel could be applied.
So why does THIS CASE matter? Community association leaders need to be very mindful of the impact of rule changes. While rules and regulations can certainly be amended (in accordance with the procedures contained in the governing documents and applicable law), care and thought needs to be put into the deliberative process leading up to the change. We recommend that the community association leadership keep in close consultation with the association’s legal counsel when considering rule or regulation amendments. Once the rules are in place, evenhandedly enforcing them with regard to all residents is key to the rules’ ongoing enforceability.
Question of the Month
Q: You previously addressed the $100 cap on the fees associations can charge when a property is sold. I heard there was a change to this statute. Can you provide an update?
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:
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.
- 2022 Legal Update
- Anatomy of a Water Leak
- Budgeting & Reserves
- Collection and Foreclosure Strategies for Community Associations
- 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
Hurricane Window Protection Policies & Local Regulations
CAI South Gulf Coast Magazine
In the wake of Tropical Storm/Category 1 Hurricane Elsa, and with September being National Preparedness Month, hurricane preparations are top of mind for many owners and associations, as are considerations for how long hurricane shutters, plywood, or other protective window coverings should remain in place following an active threat of a storm.
Section 718.113(5) of the Florida Condominium Act requires each board of administration of a residential condominium to adopt hurricane shutter specifications for each building within each condominium operated by the association. The specifications must address permitted color, style, and may address “other factors deemed relevant by the board.”
Summary of Legislative Changes for Community Associations 2021
The Community Connection
As if the social, medical, and technological changes associated with the COVID-19 pandemic were not enough for community association board and members to adjust to over the past year. As of July 1, 2021, there are also a host of new changes to the Condominium (Chapter 718, F.S.), Cooperative (Chapter 719, F.S.), and Homeowner Association Acts (Chapter 720, F.S.), (collectively referred to as “The Acts”) which have practical and immediate effects on how associations operate and how they enforce and amend their governing documents. between a community association manager (or management firm) and community associations. The purpose of this article is to discuss appropriate and inappropriate scopes of indemnification clauses in contracts entered by your association.
Maintaining Civility in Community Associations
FCAP Managers Report
This past year has brought out divisiveness and discord at all levels of governance, including community associations. Although emotions always seem to run particularly high, community associations have been filled with neighbors with differing values, preferences, and opinions as to how the association should be run and maintained.
Even pre-COVID, association governance could become intensely personal. The board makes tough decisions that impact members’ property values, enjoyment of the property, and quality of life. This makes communicating in a civil manner a requirement of living in a community association, especially in associations with shared amenities and with members residing in close proximity to one another.
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?”
Las Olas Lifestyle’s Women of Influence: Donna DiMaggio Berger
Q: What’s the best advice you have ever received? And who gave you that advice?
A: The best advice came from my mother who always said, “You can afford to be gracious.” She was right. You will cross paths with people who might not be gracious with you, but displaying grace is never a gad option. And grace under pressure is a valuable skill these days, as we continue to experience unprecedented challenges.
Becker Steps Up to the Mic with Podcast,
‘Take It To The Board with Donna DiMaggio Berger’
Becker is thrilled to announce the launch of its community association-focused podcast, Take It To The Board with Donna DiMaggio Berger. For decades, our firm has served the legal needs of this industry through in-person conferences and roundtables, online educational webinars, in-depth blog posts, and easy-to-understand legislative updates; we are delighted to continue the conversation on yet another platform. Join us today!
- 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 & Referencing with Howard Perl
- The Mental Health Challenge with Chris Ayub
- Reserve Funds & Studies with Robert Nordland
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.
DID YOU KNOW?
Becker Launches Interdisciplinary Sea Level Rise Advisory Team to Serve Florida’s Coastal Residents
As one of the first law firms in Florida to address the legal issues stemming from sea level rise, Becker is excited to announce its interdisciplinary Sea Level Rise Advisory Team which includes experienced and knowledgeable lawyers ready to assist our clients in preparing for the future.
Our multifaceted team is comprised of specialists at the forefront of this emerging area of environmental law. This includes attorneys and government relations professionals across our Land Use & Zoning, Government Law & Lobbying, Community Association, Real Estate, and Construction Law & Litigation practices..
UPCOMING CLASSES & WEBINARS
Take A Bite Out of Fraudulent Assistance Animal Requests
1 ELE Credit
10/5/21 | 4pm EDT
Kathleen O. Berkey
JoAnn Nesta Burnett
Steven H. Mezer
David G. Muller
2022 Legal Update
2 LU Credits
10/12/21 | 3PM EDT
Steven H. Mezer
David G. Muller
Insights into your Role as a Board Member – Fiduciary Duty & Business Judgment Rule
1 IFM or 1 ELE Credit
10/14/21 | 1PM EDT
Joseph E. Adams
Construction Contracts and the Lien Law
2 OPP or 2 ELE
10/19/21 | 12PM EDT
Steven H. Mezer