This edition of Becker’s Community Update highlights remote voting, managing your personnel, and constitutional rights. Don’t miss the 50th anniversary video that showcases Becker’s rich history and culture.
Also featured this month is our Hurricane Preparedness and Recovery Guide. While we hope to be spared from the worst, it’s crucial that your community association is prepared this hurricane season. If you have any questions or are in need of guidance, please reach out to your Becker attorney.
The Federal National Mortgage Association and the Federal Home Loan Mortgage Corporation recently issued new temporary requirements as an attempt to mitigate risk in community association loan underwriting. Learn about these new requirements in, “The New Fannie Mae and Freddie Mac Lender Questionnaire: To Answer, or Not to Answer, That Is the Question” by David Dockery.
Flags serve as a powerful symbol of a nation, its ideals, and its people, and their display in community associations is addressed under State law. Kathleen “Katie” Berkey discusses permitted flags in, “Getting “Flag Ready” for the Fourth of July.”
“What Are Limited Common Elements and Who’s Responsible?” Karyan San Martano explains how The Florida Condominium Act defines limited common elements and the importance of declaration language in determining responsibility allocation.
Uniform enforcement is at the heart of, “THIS CASE: Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc.” by Jay Roberts. Find out why this case is important.
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
By: David L. Dockery
The Federal National Mortgage Association (“Fannie Mae”) and the Federal Home Loan Mortgage Corporation (“Freddie Mac”) recently issued new temporary requirements as an attempt to mitigate risk in community association loan underwriting. Many other industries within the community association world, such as insurance, have adjusted costs and guidelines in an effort to mitigate risk as well.
Getting “Flag Ready” for the Fourth of July
By: Kathleen “Katie” O. Berkey, AICP
Flags serve as a powerful symbol of a nation, its ideals, and its people, and their display in community associations is addressed under State law. The Florida Condominium Act permits a unit owner to display, in a respectful manner, one portable, removable United States flag and portable, removable official flags, not larger than 4.5-feet by 6-feet, that represents the United States Army, Navy, Air Force, Marine Corps, Space Force, or Coast Guard.
What Are Limited Common Elements and Who’s Responsible?
The Florida Condominium Act defines limited common elements as those common elements that are reserved for the use of a certain unit or group of units, as specified in the declaration of the condominium. This definition indicates that the limited common elements are a subset of the common elements. Examples of what may be included in the Declaration as a limited common element might include parking spaces, storage units, balconies, or patios.
Chattel Shipping and Investment, Inc. v. Brickell Place Condominium Association, Inc.
481 So.2d 29 (Fla. 3rd DCA 1986)
The Brickell Place Declaration of Condominium included a provision which precluded owners from enclosing their balconies without prior approval from the association. However, until 1981 the restriction had never been enforced and as many as forty-five (45) owners had enclosed their balconies without authorization. After learning that the balcony enclosures violated the City of Miami’s zoning ordinance, the association informed the owners that moving forward it would apply the prohibition on all future balcony enclosures, but take no action with respect to the existing balcony construction.
A unit owner, Chattel Shipping and Investment Inc., enclosed its balcony after the announcement of the association’s rule, and the association sought injunctive relief (having the court force someone to do something) to impose the restriction and remove the enclosure. The owner’s argument was that the association was “selectively enforcing” the enclosure restriction against it. Neither the trial court nor the appellate court sided with the unit owner, but why?
The Third District Court of Appeal clarified that selective enforcement is based on the concept of estoppel. Specifically, estoppel applies where “previous non-enforcement has led to expenditures made in justified reliance on the continuation of that policy.” The Court reasoned that the principle of estoppel has no application where the association gives notice that only subsequent violations will be prohibited because in those instances there has been no reliance on the status quo of non-enforcement.
So, why does THIS CASE matter? There could be instances in your community where certain covenants or rules have not been uniformly enforced in the past. THIS CASE stands for the proposition that an association can cutoff a potential selective enforcement argument by reaffirming the specific restriction and giving notice to the membership that the restriction will be uniformly enforced going forward. That is the easy part. The hard part is that you must follow through and uniformly enforce the restriction! This type of Board resolution should be drafted by your legal counsel so you do not inadvertently grandfather other violations that you may be attempting to enforce.
RESERVE AND INSPECTION LAWS CHANGED
Consisting of relatively minor changes to the sweeping building inspection and reserve laws enacted in 2022, Joseph Adams discusses Senate Bill 154, which will become law upon signature by the Governor.
50 YEARS: CELEBRATING OUR PAST, INSPIRING OUR FUTURE
As we mark our 50th anniversary, we are thrilled to share with you a video that showcases Becker’s rich history and culture.
Since our humble beginnings, our firm has been engaged in the practice of law and has built a reputation for excellence in the legal industry. What sets us apart is not just our legal expertise, but our employees, who we believe are our greatest asset. This video highlights some of the key moments in Becker’s history, as well as the values and principles that guide us in our work. You will see how our firm has evolved over the years, and how we have remained true to our core values of integrity, client service, and innovation.
CAN THE DIRECTORS AND MEMBERS OF YOUR COMMUNITY ASSOCIATION MEET AND VOTE REMOTELY?
During the COVID-19 pandemic, people and businesses alike struggled to meet, organize, and otherwise conduct business in person due to quarantine measures and social distancing policies. In light of these challenges, in 2021, the Florida Legislature enacted laws to make clear that, during a state of emergency, condominium, cooperatives, and homeowners’ associations are authorized to conduct board meetings, committee meetings, elections, and members meetings, in whole or in part, by telephone, real-time videoconferencing, or similar real-time electronic or video communication. As a result, many community associations have become accustomed to remote functionality and utilizing popular real-time video conferencing software such as “Zoom” for the purposes of organizing meetings of members and Directors alike. However, now that the pandemic state of emergency has come and gone, can the Directors and members of your community association continue to meet and vote via Zoom or similar remote methods?
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:
- The Ins and Outs of Florida’s New Condominium and Cooperative Safety Law
06/01/23 – 12:00PM – REGISTER HERE - Construction Contracts: Why You Should Never Accept Contractors Forms
06/13/23 – 10:00AM – Registration Coming Soon - Becoming a Smoke Free Community
06/15/23 – 11:00AM – Registration Coming Soon - Insights Into Your Role as a Board Member
06/22/23 – 10:00AM – Registration Coming Soon - Condo Construction Defects 101
06/28/23 – 10:00AM – Registration Coming Soon - Collections and Foreclosures
06/29/23 – 11:00AM – Registration Coming Soon
FEATURED TESTIMONIAL
“I wanted to take a moment to express my sincere gratitude for the wonderful seminars that you consistently organize for managers in our community. The fact that these seminars are provided at no cost and offer Continuing Education Unit (CEU) credits is truly commendable. I have had the pleasure of attending several of Becker’s seminars in the past, and each experience has been nothing short of exceptional. Your team consistently demonstrates a high level of professionalism and expertise in the topics presented. The knowledge and insights shared during these seminars have been invaluable in enhancing my skills as a manager.
Moreover, I appreciate the effort that goes into selecting relevant and interesting topics for each seminar. The diversity of subjects covered ensures that attendees receive a well-rounded educational experience. The opportunity to earn CEU credits through these seminars also greatly benefits managers like myself, as it allows us to conveniently renew our licenses while staying up-to-date with industry developments. Beyond the educational value, I must also commend Becker for their outstanding customer service. The team has always been pleasant, approachable, and accommodating. Whether it’s answering questions, providing additional resources, or addressing concerns, your staff consistently goes above and beyond to ensure a positive experience for all attendees.
I genuinely appreciate Becker’s commitment to supporting the professional growth and development of community managers. Your seminars have become an essential resource within our industry, and I am grateful for the opportunity to participate in these enriching events.”
~ Mónica Abreu, General Manager
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:
- 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
- Pickleball Mania and How it is Affecting Your Community with CA Messana
- Navigating the Negative Impacts of Sea Level Rise with Professor Harold R. Wanless and Dr. Esber Andiroglu
- Donna DiMaggio Berger Celebrates 50th Episode with Business Attorney and Husband, Michael Berger
- Guns, God, and Gab – A Constitutional Analysis with Jay Roberts, Esq.
This podcast was started with the goal of giving its listeners a glimpse into the inner workings of a community association including the good, the bad, and the ugly. Now, it is only fitting to give a glimpse of its host, Donna DiMaggio Berger, who is joined by her husband, Michael Berger, a fellow University of Miami Law School graduate. In this episode, Donna and Michael discuss how they met, their unorthodox introduction to the condominium approval process when they purchased their first home in Aventura, a special assessment they paid as new homeowners for a problem-plagued skylight repair project, and their separate experiences later serving on their Broward County HOA Board. Listen to the full episode here.
FEATURED EPISODE: GUNS, GOD AND GAB – A CONSTITUTIONAL ANALYSIS WITH JAY ROBERTS, ESQ.
Becker Shareholder Jay Roberts, who represents community associations and developers with respect to all aspects of creating and operating planned community developments throughout Northwest Florida, sits down with Donna DiMaggio Berger to discuss two thought-provoking questions:
- Should commonly accepted rules regarding signs, flags, and holiday decorations be considered unenforceable because they potentially infringe upon constitutional rights?
- Conversely, in a community association context, do residents’ constitutional rights to free speech, freedom of assembly, and the right to bear arms lose their applicability if restricting these freedoms serves the greater good?
CAI National’s 2022 Florida Legislative Action Committee of the Year Award
Robyn Severs accepted the CAI National’s 2022 Florida Legislative Action Committee of the Year award which is presented to a state legislative action committee that has demonstrated organizational excellence, maintained strong member support, successfully managed statewide campaigns, and raised the visibility and effectiveness of CAI.
The Becker team was mainly recognized for their work on Senate Bill 4-D establishing structural inspections and structural integrity reserve studies to establish safe condominiums and cooperatives in Florida. The legislation has been used by other states and countries as guidance for their own structural inspections and reserve studies.
MANAGING YOUR PERSONNEL: FIVE LESSONS THAT YOU DON’T WANT TO LEARN THE HARD WAY
By: Jamie B. Dokovna
Shareholder, Jamie Dokovna writes about the challenges that ensue when managing personnel by highlighting five important lessons:
Lesson One – Hire the right people
Lesson Two – Have policies and enforce them
Lesson Three – Be flexible when necessary
Lesson Four – The tools you have aren’t any good if you don’t use them
Lesson Five – Document everything!
Congratulations to Glenys Vincent on Winning Our Survey Giveaway!
We appreciate your feedback! Thank you to Glenys 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.
DID YOU KNOW?
Hurricane Season Runs From June 1 to November 30
Our Hurricane Preparedness and Recovery Guide is designed to assist community association boards and managers to prepare themselves, their members, and their property for the approach as well as the aftermath of a serious storm or other disaster. Our attorneys, many of whom have been representing community associations in Florida for over 20 years and are board certified by the Florida Bar, have assisted in all phases of planning and preparing, as well as recovering and rebuilding.
