The November Issue Includes:
- How to Reply to This Newsletter
- Commercial Vehicle Restrictions: The Good, The Bad, The Ugly
- Holiday Décor: Ho Ho Ho, or Bah Humbug?!
- Happy Birthday to Us!
- CM Celebrates 31 Years of Arlene Ring
- Brand New Complimentary Service: Community Text
- "12 Days of Christmas" with Maitland Chamber of Commerce
- Four New CM Short Takes Available
- New CM On Demand Board Certification Classes Coming Soon
- "Elective" On-Demand Classes Available
- Board Certification Form Available
- Submit Your Questions to Ask CM
- 2022 Holiday Season Office Closures
- Follow Us On Social Media!
- About the Green Marble
- CM Contact Information
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When replying with a question or statement, please include your full name and legal name of your Association; if you are a Board or Committee Member and/or Resident, and if you are a manager, include your name, name of the your Management Company, or if you are an independent manager, the name of the Association you manage.
No acronyms please, unless your legal name is an acronym. This will expedite our reply to you, as our database is by Association or Management Company.
Make a comment on our featured article or other articles by simply emailing pr@clayton-mcculloh.com. Don't forget to add your Association, email address, and phone number so we can get back in touch with you. We may even ask if we can publish your comment in the next issue!
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Commercial Vehicle Restrictions: The Good, The Bad, The Ugly
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Many individuals believe that commercial vehicles, or at least certain types of commercial vehicles, hurt property values and negatively affect a community’s desirability. Of course, the type of commercial vehicles a community may want to prohibit or restrict may vary significantly. By way of example, where one community may want to prohibit 18-wheelers, another community may want to prohibit any vehicle with signage thereon, while another community may want to restrict various types of vehicles of a certain size, weight, appearance, function, etc. |
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Ultimately, we must acknowledge that restrictions on commercial vehicles, if not the prohibition of commercial vehicles altogether is extremely common in Declarations, if not the norm. Moreover, as additional developments come online, it appears that more and more covenants and restrictions limit and restrict, if not completely prohibit, commercial vehicles from communities.
In addition to the belief that commercial vehicles may lower property values, harm the appearance of a community and/or lessen the desirability of a community, please consider whether the parking of commercial vehicles on-site will deprive other occupants of needed parking spaces. Of course, when parked, some commercial vehicles extend beyond a single parking space (e.g., essentially take up two spaces) and create safety issues for persons and other vehicles.
The foregoing is not to suggest that all communities should have commercial vehicle restrictions, as the existence of commercial vehicles in certain communities may not have an adverse effect. In fact, certain commercial vehicles may have a positive effect. By way of example, police cars driven home by police officers and parked on-site may help to deter crime.
In addition to the above, we must acknowledge that commercial vehicles may be the only mode of transportation for some residents. As such, these individuals may strongly object to such restrictions and claim that depriving them of the right to park on-site is unfair and discriminatory. Even if a commercial vehicle is not a resident’s only mode of transportation, such person may feel that such restriction(s) are unfair as other Owners may have the right to park as many vehicles as they want in unassigned parking spaces.
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Ultimately, a community association and its Membership need to determine, not only, whether to prohibit or restrict various commercial vehicles, but, if so, to what extent. However, if the association is going to prohibit and/or restrict them, then the type of vehicle which is to be restricted and/or prohibited should be clearly specified to the degree possible. Unfortunately, what constitutes a “commercial vehicle” is subject to interpretation and significant debate. Therefore, to the extent the association desires to regulate commercial vehicles, Clayton & McCulloh recommends that the association’s Declaration and any resulting Rules and Regulations promulgated by the Board of Directors address the following issues:
- The exact type of commercial vehicles the association wants to prohibit. As such, the regulation should not simply prohibit or regulate “commercial vehicles”. Rather, it should define and/or specifically spell out and describe (to the degree possible) the vehicles the Association intends to regulate to curtail confusion, challenges, ambiguity, disagreements, controversy and risk;
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If commercial vehicles are to be prohibited during certain hours, as opposed to altogether, the specific hours need to be delineated (e.g., if the association is going to regulate the time of day or length of time a commercial vehicle is allowed to be parked on-site, the time period should be expressly specified, as opposed to more vague restrictions such as “no overnight parking”)[1], and
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The restriction should be adopted in an amendment to the association’s Declaration[2], as opposed to being solely within its Board-adopted Rules and Regulations, as this will substantially bolster its enforceability.[3]
Unfortunately, most vehicle restrictions, including commercial vehicle restrictions, that we see in Governing Documents, are poorly worded, subject to different interpretation(s) and need to be amended to clarify, to the degree possible, the vehicles being regulated and how. Please remember that the lack of specificity in such restrictive covenant may not only jeopardize an association’s claim, but may, likewise, increase the association’s risk, not only with respect to enforcement, but also with respect to its failure to enforce. As such, please consider not only whether your association wants to regulate commercial vehicles, but also consider whether your Governing Documents will need to be amended. Please also appreciate that we recommend that if an association does not have the will or motivation to actually enforce a provision in your Governing Documents, the association should amend the provision to eliminate it. Please appreciate that associations and their Boards are ever increasingly being criticized and challenged, and sometimes sued, for their failure to enforce provision(s) within their Governing Documents.
[1] Of course, associations should consider how they are going to monitor whether parking (and/or continuous parking) of such vehicles transpires (i.e., violations occur) during such time periods.
[2] Note for Co-Ops, the restriction would normally go in its Bylaws.
[3] Note case law is clear that provisions within the association’s Declaration can be, to a degree, unreasonable, if not highly unreasonable, and still be enforceable. Conversely, provisions in Board adopted Rules and Regulations must be reasonable to be enforceable.
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Holiday Décor: Ho Ho Ho, or Bah Humbug?!
Editor's Note: This article is a reprint that has been published previously, but the information is still timely
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The holidays can bring out the best in a community: parties, lights, statues, and festive adornments throughout the neighborhood are common and largely welcomed in community associations. However, there is certainly disparity between what some members adore as tasteful, festive, and appropriate holiday décor, versus the Griswoldian “floodlights” that plague some neighborhoods at all hours of the night. Traffic may also be problematic – candidly even my own children will demand that we “rubberneck” when passing a beautifully decorated home. Yet other residents leave their festive décor up until they can (perhaps unilaterally) justify replacing it with Easter decorations, or put up as early as November 1st. As seen in the news this year, these disputes can create severe discord in a community, Covenant Violations, or even lawsuits. Given the personal, festive nature of these decorations, such disputes can quickly become a “matter of principal” that simply won’t be resolved absent a judge’s decision. (Author’s note: such personal matters rarely end with the desired outcome!)
Some HOAs attempt to preemptively combat these issues by implementing rules regulating (or even prohibiting) outdoor decorations, including in type, timeframes when they can be up, etc. While authority to do so generally exists, it can be difficult (and divisive) to create and enforce these rules. As a suggestion from a lawyer that deals with these issues on a regular basis, the Association should consider the desires of its residents in regulating holiday decorations. A perfect example is the handling of an association seeking to enforce its rule prohibiting Christmas décor before Thanksgiving, against owners who could only find a contractor to install their decorations on November 6, 2021. The attorney could have fought tooth and nail to enforce this reasonable rule, but instead reportedly cautioned the Board to take into account the members’ actual desire, which appears to have been to revise that rule to allow for reasonable exceptions. Rather than remain the stereotypical HOA “commandos,” the Board showed they care, and in the holiday spirit, it appears they may have mitigated the disruption of everyone’s holiday cheer in doing so. While regulations on holiday decorations may serve a valuable purpose in some Associations, in other Associations, similar regulations may seem overbearing and exemplify the reasons many – while perhaps missing the purpose of an HOA – prefer to avoid living in one.
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If an Association’s rules restricting or banning holiday décor are challenged in court, the Association must establish that the rules meet the criteria of reasonableness set forth in Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180 (Fla. 4th DCA 1975): they cannot be arbitrary or capricious, and must bear some relationship to the health, happiness, and enjoyment of life to the residents of the community. If the Association cannot show that the rules further this purpose, a Court might find them unreasonable, and thus, unenforceable. Another factor to consider is that the judges ruling on these disputes have some authority to decide what is fair and equitable, after what can be a long, drawn-out battle. Hopefully for many HOAs, the issue will never come to this, but keep in mind the likelihood that you may still be fighting that battle next Christmas, and spending thousands of dollars to ensure a plastic snowman moves from lawn to attic for a few months.
In short, timely, tasteful holiday décor can bring joy and strengthen the sense of community in associations, but that does not mean reasonable regulations cannot be enacted to protect the community as a whole. Regardless of whether you’re hanging wreaths, hanging lights, or just hanging around with family this holiday season, we wish a wonderful holiday season to all!
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Happy 35th Birthday to Us!
Thirty-five years ago, Ken Clayton & Neal McCulloh, our Founding and Senior Partners, founded Clayton & McCulloh, a law firm specializing in Community Association Law (HOAs, condos, cooperatives, and mobile home parks) in a building downtown Orlando near Lake Eola Park. It all started with one employee and the two partners working hard to establish a new practice. They had worked for another firm practicing in this area of law and prior to working for that firm, Ken had his own firm concentrating on Association law. At the time of our founding, there were only three firms in the Orlando area that practiced Association law. Today, there are numerous firm that work in this area. But none have the rich history and experience of CM.
Through the years, our service area and clientele has grown! But what sets us apart is that we are the firm that Embraces Community.
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CM Celebrates 31 Years of Arlene Ring
Thirty-one years ago, a new employee started with CM as our Senior Partner, Neal McCulloh’s paralegal. She came to us with a strong legal and marketing background and quickly became a client and manager favorite due to her expertise (both legal and as a former HOA/Condo officer) and outgoing personality. Our seminars were created and developed by her and became the gold standard in Central Florida. Thus, she became known as “the face of CM.” Join us in congratulating Arlene Ring, our Director of Public Relations, on 31 years of service to CM.
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Brand New Complimentary Service: Community Text
The newest! The brightest! Yes – a brand new CM service makes its debut this month: The Community Text Service. This mass texting service will send limited, important information to your cell phone. Two messages monthly and on special occasion, a maximum of three messages per month. These messages will include:
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Notice of a new event such as a brand-new webinar/seminar topic, social event, other event (link to our website will provide more information). Special Note: This is not to be confused with reminders for those who made a reservation for one of our events;
- Reminder that our newsletter has been published and is in your email inbox. It will include the title of the lead article. Concerns have been raised that internet carriers are sending our newsletters to spam/junk mail folders which may not be checked regularly and then deleted by your carrier before you can see it;
- Major changes in the law or a significant judicial case that may affect your Association with a link to our website for more information;
- Reminder to submit your board information as your annual meeting took place the previous month (if you have not already submitted; a link will be provided to our website as an option to submit the information); and/or
- A new CM Service making its debut, or a reminder of a special service that may save your Association money (no more than four per year and they would be the third text of the month).
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Maitland Chamber of Commerce:
"12 Days of Christmas"
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The time of year has come once again to spread love, hope, joy… and presents! The Maitland Chamber of Commerce is holding their fifth annual Christmas event, 12 Days of Christmas! Starting on November 30, 2022, the Chamber will be holding daily drawings and awarding one lucky winner each weekday with gifts donated by Chamber members, all leading up to the grand prize of $500 which on December 15, 2022 which will be broadcast LIVE followed by a Christmas party!
Tickets are now available and are priced as listed below. Anyone can purchase tickets - you do not have to be a member of the Chamber. Over 78 prizes valued at a minimum of $50:
- 1 Ticket - $10
- 3 Tickets - $25
- 6 Tickets - $50
- 12 Tickets - $100
Be sure to get your tickets soon, as tickets are only available until November 28, 2022 at 11:59 pm EST.
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Remember When - Who is This?
This is the first of a series of "Remember When - Who Is This?" From time to time, we will post in our newsletters a photo of one of our staff or attorneys as a child and give you some clues as to who they are. You submit your guess by clicking the button below. If you are correct, we will publish your name along with the employee's name and current photo in the next issue. We will also print some interesting facts about that employee. So, lets have some fun! Here we go! First up!
Clue #1: You may have bumped into him at one of our seminars.
Clue #2: He is known for his radio voice.
If you think you know who this handsome guy is, click the button below to make your choice!
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Four New Short Takes Make Their Debut! |
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Clients sometimes cringe when an attorney recommends a title search.
Learn why they are so important and in the long run,
how it can save your association mucho bucks!
Is your Association headed for turnover or do you know of one that is?
Before they turn over, invite them to view this very important, short video
to help ready them for the most important time period of their Association.
Great topical video packed full of advice on
Budgets and Reserves. A must see!
Introduced and signed into law in May 2022,
Florida Senate Bill 4-D establishes statewide
structural integrity reserve study and funding requirements
for condominium associations and cooperatives
What is a CM Short Take? Glad you asked! It’s our complimentary 10-minute or less (excluding introduction and closing) informal discussion presented by one of our attorneys, staff members, or guest expert speakers from the community association industry. Brand new for ’22, these pre-recorded Short Takes will include legal, and practical non-legal topics for associations’ board members, managers, committee members, and residents alike!
There is an optional five question survey you can take afterwards for which we will add your name to our monthly drawing for a special gift.
Do you have a suggestion for a topic or a speaker? Let us know below so we can work it in our schedule. This is a great opportunity to request any topic in a perceptible, concise presentation that is accessible and free.
The above Short Takes join our current library listed below:
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New Board Certification Classes
Coming in December!
You may have noticed that our HOA and Condominium/Cooperative Board Certification classes are not available at this time on our website. CM is re-recording these two popular programs and they will be available in December.
All new board members are required to take the Board Certification Class by an approved provider within ninety (90) days of being elected to the Board of Directors. You do not need to take the class again if you have served continuously on your Board of Directors. But if you go off the Board – even for a day – you will need to take the class again. You do not have to re-take the class every year. However, if there are substantial changes in the law, you might consider taking the class as a refresher course. If you would like to be placed on our waiting list, simply complete the form at this link and we will notify you when it is available.
If your ninety-day time frame comes after December 31st, consider purchasing the official Board Certification Form. This official document allows you to opt out of taking the class, but you will be putting your Association at risk should you elect this option with no intention of taking the class when it is available.
Also, you can purchase the document and use it as a “temporary pass” until the class is available which is what we generally recommend. If you would like to purchase this document, here is the link to do so.
Our webinars are offered on a complimentary basis to our active clients. However, as an active client, you may choose to make a voluntary donation to our Pet Drive of any amount. There is a small $15 fee for non-client registrations that directly benefits our Pet Drive. All fees go directly to our Pet Fund to benefit a private non-profit 501 (c) pet rescue to assist in their vet bills. CM does not keep any of the funds. The lucky pet rescue will be announced in our January issue,
For all of our CM On Demand Classes - please remember to carefully read and fill out the reservation form and instructions prior to submission as errors may prohibit it from going through. Wait for the automated receipt banner confirming that the registration went through.
Do not share the links! If we receive notification that the link has been shared with an unauthorized individual, your association may be banned from taking future CM classes.
So, pop the popcorn, pour your favorite beverage, grab your pen and pad, and settle in for easy On Demand viewing on your computer, smart phone, or tablet! From the firm that Embraces Community, help us put you first with this personalized service.
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CM On Demand Elective Webinars! |
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As we head to the election season, one of our webinars is particularly useful to Associations and the election process is Who Does What? Officers' Duties Breakdown. This webinar covers the traditional duties of each individual officer and director and suggest many other responsibilities that could be assumed by a Board Member so that each Officer and Director has a balanced work load. This lively webinar also covers tasks that you may forgotten to include that are vital to the success of the Association. Our Director of Public Relations, Arlene Ring, who has served in various HOA and condo boards as well as other non-profit association related organizations is the speaker for this class. As a special bonus, if you have a question after viewing the class, call her directly at (407) 875-4429 for assistance. Why? Because we are the firm that Embraces Community.
Please view the class summary on our website and register at the link below.
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Don't Want to Take the
Board Certification Class?
If you prefer not to take the certification class, CM offers the Board Certification form which you can use to opt out of taking the class. There is a $10 donation for this service that is exclusive to our clients. The donation goes directly to our Annual Pet Drive to assist the private non-profit 501 (3) (c) pet rescues with their vet bills.
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Get Free Legal Information
for your Association
If you have any Community Association questions that you would like answered, please submit your question using the button below. We regret that we cannot answer every question and cannot answer a question that requires us to review your Governing Documents. If your question is not answered for the next issue, we may use it in a future issue.
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2022 Holiday Closure Schedule
The holidays are almost here! We will be closing so our employees may make memories with their loved ones.
CM will be closed as follows for Thanksgiving:
Thursday, November 24th
Friday, November 25th
Additionally, we will close as follows for Christmas:
Starting at Noon, Friday, December 23rd
Monday, December 26th
Please remember that even if our office is closed, we are still available to you 24/7/365 at (407) 875-4429! Just one of the ways we demonstrate why we are the firm that Embraces Community!
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Have You Checked Out Our
YouTube Videos?
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Did you know that several of our attorneys and staff have an individual video on our website and YouTube? No? Each person covers a different aspect of Community Association Law or life. See these videos below.
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Ken Clayton,
Founding & Senior Partner
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Neal McCulloh,
Founding & Senior Partner
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Russ Klemm,
Partner & Litigation Chair
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Arlene Ring,
Director of Public Relations
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Follow CM On Social Media! |
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Make sure to stay up to date on the latest seminars, as well as legal, legislative, and community association updates by following us on Facebook, LinkedIn, and YouTube by clicking the buttons below! |
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Follow our Director of Public Relations,
Arlene Ring on Social Media!
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For the latest on practical issues and solutions for community associations, special interest information for Board Members, CAMs ,Community Association Vendors, and more, click the button below! |
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About the "Green Marble"
The Green Marble is a monthly digital newsletter, a complimentary service for our Association Clients and Managers. CM also features an additional monthly digital newsletter, "CM Update," an annual "Community Chat" (delivered to your home via USPS), and "CM Special Editions." These publications are published by our Public Relations Department. If you have any questions, comments, or suggestions about this newsletter, please contact us at pr@clayton-mcculloh.com.
You are receiving this e-mail as you fall into one of the following categories:
*You are currently a client or client's manager;
* You have requested to be on our mailing list;
*as a former member of BCAM and NECAM you are
provided a complimentary subscription to the CM mailing list;
*By attending one of our seminars, you agreed to be part of our Confidential Mailing list.
If you would no longer like to receive seminar invitations, up-to-date information and changes regarding Community Association Law, newsletters, or exclusive, premium CM services, please contact us at pr@clayton-mcculloh.com.
When replying with a question or statement, please include your name and the legal name of your Association or Management Company (no acronyms, please, unless your legal name on the Article of Incorporation lists an acronym.)
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Orlando Office: Maitland
The Clayton & McCulloh Building
1065 Maitland Center Commons Blvd.
Maitland, FL 32751
Phone: (407) 875-2655 Fax: (407) 875-3363
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Melbourne Phone: (321) 751-3449 Toll Free: (888) 793-1486
After Hours - 24/7: (407) 808-2553 or (407) 875-4429
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