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Posts by Donna DiMaggio Berger

  • Which affirmative defenses might derail your community’s enforcement efforts?

    Which affirmative defenses might derail your community’s enforcement efforts?

    Most association boards can decide when they wish to pursue an owner who has violated the community's restrictions. However, it is the rare board that undertakes a thorough analysis before sending out those demand letters to determine if the owner can ...

  • Not Your Ordinary Hurricane Guidebook!

    Not Your Ordinary Hurricane Guidebook!

    Now that we are well into our  6-month hurricane season with Hurricane Arthur already having come and gone, it is still not too late for your board to learn a few new techniques to best prepare your community to weather a storm.

    The typical advice to purchase water, fill your gas tank and stock up on candles and batteries is helpful but does not address the constraints of both the governed and the governing when it comes to preparing for and recovering from a disaster event.

    Given Florida’s significant community association population, the need for a guidebook specifically designed to safeguard private residential communities is irrefutable. The same is becoming true for other states who have suddenly become vulnerable to windstorms on a more regular basis than in the past.

    Does your board know the common pitfalls associated with the complicated preparation and recovery process?  The topics in the new Hurricane Preparedness and Recovery Guide released by the law firm of Becker & Poliakoff address all phases of hurricane and disaster planning, preparation, recovery, and property restoration including:

    Hurricane evacuation & relocation
    Best Practices for Records Safekeeping and Benchmarking
    Employee policies
    Disaster committees
    Community Emergency Response Teams
    Emergency communications
    Board emergency powers
    Property inventories
    Insurance & reserves
    Hurricane insurance claims
    Pre-negotiated service contracts

    Leading community association industry companies with in-depth experience in assisting volunteer boards have also contributed to the Guide, including Associa, Castle Group, Danon Management Group, FirstService Residential, KW Property Management & Consulting, Plastridge Insurance and Sentry Management.

    The 24-page Hurricane Preparedness Guidebook is available free for download at

  • What exactly does grandfathering mean in your community?

    What exactly does grandfathering mean in your community?

    In the community association setting, we often hear about certain things, people or practices being “grandfathered in” which basically means that new restrictions cannot apply in those instances.

    The term “grandfather clause” has an ignominious past; it arose as a constitutional device used by some Southern states to deny voting rights to black Americans between 1895 and 1910 by exempting those people whose lineal descendants had enjoyed the right to vote prior to 1866 from having to comply with latter-day voting requirements tied to education, income and real property ownership.

    In today’s parlance, someone can be “grandfathered in” when it comes to owning a pet, driving a commercial vehicle, leasing out a home and more.

    Why does the notion of grandfathering create strong emotions on both sides of the equation? 

    For boards and association members wishing to enforce new restrictions which they feel are in the best interests of the community, it is important to know that the rules will apply equally to all. For people who bought in a community without certain restrictions, it can be unsettling to learn that your dog, vehicle or tenant is no longer welcomed.

    In Florida several years ago, the Condominium Act was changed to provide that changes to leasing restrictions would only apply to existing owners who consented to such leasing amendment and to new owners who took title to their property after such amendment had already been recorded in the public records. Naturally, that legislative change has been met with some consternation over the years as boards and managers struggle with the administrative and practical challenges associated with some owners being restricted in terms of their ability to lease while others are not.

    One of the biggest hurdles and misunderstandings associated with grandfathering is the time period during which the exemption should exist. For example, if a new pet restriction is passed, should current pet owners be entitled to keep only their current pet for its natural life expectancy or does that mean that subsequent pets can be maintained in the unit as well? The same question applies to rentals, vehicles and other use restrictions. Often people believe that it is the unit which is grandfathered and not a particular condition or situation. Pets, lease agreements and vehicles all have a “life span” of sorts.

    Be sure to speak to your association attorney about how grandfathering should be handled when new restrictions are being considered in your community.

  • Could your condominium be voluntarily terminated?

    Could your condominium be voluntarily terminated?

    Do you live in an older condominium building in a prime location? Have you ever thought about terminating your condominium in order to sell your older building to a developer desirous of your location? Has the fact that your older building is going to ...

  • Construction Cranes are going up but would you buy a new condo?

    Construction Cranes are going up but would you buy a new condo?

    We've all seen the construction cranes going up, now the data confirms our suspicions. According to, there are 247 South Florida condominium projects in the works. Condominium sales currently make up half the home sales in South Flori...

  • BP Oil is still paying on claims. Could your association or individual community members be eligible?

    BP Oil is still paying on claims. Could your association or individual community members be eligible?

    As virtually every resident, property owner and business owner along the FloridaGulfCoastknows, BP Oil has entered into a class action settlement designed to compensate victims of the April, 2010, oil spill from BP’s Macondo well. The fund was originally established at $20 billion with the requirement under the settlement agreement that if it is depleted before all claims are paid, BP is required to replenish it. As of this time last year, there was $300 million remaining in the fund.

    The Deepwater Horizon Settlement was approved by a Louisiana Federal District Court on June 2, 2012, and a court-appointed claims administrator has been evaluating and paying spill-related claims ever since. The original claims deadline of April 22, 2013 has now been extended until at least September 13, 2014. In another bit of fortunate news, the U.S. Supreme Court ruled today that BP must continue paying claimants while it pleads its case to our nation's highest court. Today's decision comes after the U.S. Fifth Circuit Court of Appeals in New Orleans ruled that businesses claiming damages from the 2010 spill don't have to prove direct harm, under the terms of the settlement.

    For rental property owners, business owners and all types of community associations located in the areas covered by the settlement who have not yet filed claims, now is the time to act.

    The settlement created six distinct categories of claims. The category most commonly applicable to community associations is the Business Economic Loss (BEL) category. Eligibility for BEL claims depends upon whether the claimant’s property is located within the covered geographical area and whether the Claimant can show a loss in revenue. If so, chances are that the claim will be paid. The coverage area is comprised of four separate geographical zones identified as Zones A through D. Properties in Zone A receive the most favorable treatment and can qualify for payment without having to prove that their revenue losses were directly caused by the oil spill.  As you know, most associations can show losses related to delinquencies as well as to increased insurance premiums and other rising costs to operate and administer their communities.

    Zone A includes stretches of the FloridaGulfCoastfrom Pensacola to the Florida Keys. Zones B, C and D extend inland from the coast for as much as 100 miles. You can determine whether your property is within a coverage area, as well as your particular Zone, by reviewing the DeepwaterHorizonClaimCenter’s website at: by reviewing this interactive map:

    The formula employed by the Claims Administrator to determine economic losses is not necessarily logical or intuitive. Evaluation of a BEL claim involves comparing averages of income and expenses during a pre-spill “Benchmark Period”—a series of months selected by the claimant—with a corresponding “Compensation Period” during 2010. Certain revenues and expenses are excluded when making this comparison. If the comparison establishes a loss, a risk transfer premium may apply, increasing the potential claim by as much as 150%. In most cases, it will be impossible to determine whether your association has a viable claim without having your financial information reviewed by a professional with a working knowledge of the settlement and the protocols employed by the Claims Administrator. Consequently, many associations will no doubt leave “money on the table” by assuming they have no loss and failing to secure the proper guidance to determine whether they have a viable claim. 

    While aspects of the settlement are still being appealed and uncertainties remain, one thing is certain: those who miss the claims deadline will not be paid, even if they have compensable losses. Becker & Poliakoff has been handling these claims for communities, individual property owners as well as business owners in the eligible zones. If your community is located in one of the four zones and you have not filed a claim or even considered doing so, now is the time to contact us to discuss your options before the window of opportunity closes forever. If you and/or your fellow board members or your association members in your community rent out their units or own businesses in any of the four zones, the same logic applies.  For more information please contact us at

  • Some guidance for new board members

    Some guidance for new board members

    When you first learn that you will be serving as a new member of your community's board of directors, you are likely to be offered either congratulations or condolences; what you are not likely to be offered is much in the way of guidance for your new ...

  • Should your community seek FHA Certification?

    Should your community seek FHA Certification?

    FHA Certification does two things for a community association and its members: it allows residents to obtain a Home Equity Conversion Mortgage (HECM) and it opens up the pool of eligible homebuyers who are seeking FHA-backed loans when purchasing their...

  • Does your community file the proper tax return?

    Does your community file the proper tax return?

    Last week I was fortunate to sit in on a continuing education class provided by Donna Seidenberg and Steven Price of the Fuoco Group (, certified accountants and business advisors. The class focused on the issues pertaining to association...

  • Moms’ Best Advice for Community Associations

    Moms’ Best Advice for Community Associations

    Yesterday was Mother’s Day and I was fortunate to not only be able to thank my mom for all her hard work raising my three siblings and me but also to have my two children spending time doing the same for me. Of course, this particular holiday wouldn’t be the same without reflecting on some of our mom’s best advice. Two of my mother’s favorites were “you can get more flies with honey than vinegar” and “never underestimate the importance of a thank you.”
    In the community association setting, both of those pieces of advice might prove to be helpful for board members and residents alike. There are legitimate gripes in some private residential communities stemming from sometimes boorish behavior displayed, in often equal measure, by the leaders and the led. Still, I wonder how many of these situations could be defused with a tactful or, even better, a kind word as opposed to “pouring fuel on the fire”-another one of my mom’s favorite sayings.
    Last week, the media reported that a woman went to the house of her HOA president to discuss the need to implement a neighborhood watch program due to security issues in the community. The conversation quickly got heated and the woman was arrested for assaulting the president. If I were to play psychologist for a moment, I would surmise that the woman likely believed the president was not taking her security concerns seriously and the president likely felt that his volunteer efforts were under attack or simply not appreciated. In any event, the outcome of the conversation benefited neither the community nor the individuals involved.
    When legitimate concerns exist, they must be explored. Sometimes the outcome of that due diligence requires the recall of a director or directors who are not acting in the community’s best interests. The same decision-making process might result in a resolution to pursue enforcement action against owners who fail to comply with the governing documents. However, some of these issues on both sides of the fence could be avoided or at least defused if people took their moms’ best advice and acted with a little more deliberation, tact and sensitivity.
    If you live in a community association but do not serve on the board, when was the last time you thanked someone who is serving on the board? If you serve on a board, when was the last time you encouraged members to attend your meetings and thanked those who took time to show up and do just that? Experience shows that positions harden in the presence of antagonistic words and hostile demeanors.
    Appreciation is a two-way street and if we had more of them in our communities, we would have fewer mishaps.