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Donna DiMaggio Berger

Donna Berger’s Answers

7 total

  • Why can HOA not enter a vacant property even with owner's authorization? Nuisance alarms not HOA noise/quiet enjoyment issue?

    Smoke alarm in currently vacant home going off for nearly 48 hours (not just chirping). Owner lives overseas; rents property. FIre & Sheriff's Depts couldn't enter bcoz no emergency (smoke/fire). Only HOA management had owner's contact ...

    Donna’s Answer

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    If the property owner gives the HOA legal permission to enter his or her property then the HOA has the right to do so. Absent that permission, the HOA should not enter the property. In the scenario set forth above, I suspect the HOA did not want to do so for fear of being accused later of some wrongdoing. A loud alarm sounding for 48 hours rises to the level of a general nuisance which should have been dealt with by the association either by obtaining the owner's permission and entering the home or by contacting the alarm company to deactivate the alarm remotely.

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  • My HOA will not allow me to plant a small garden , though there are no rules against it in my bylaws book. What are my options?

    The HOA wants me to submit a plan to Architectural Review, which I'd done and they patently denied, stating the HOA highly discourages gardening. There's no rules against it, as a matter of fact an addendum was drafted which states that no HOA ap...

    Donna’s Answer

    When you are confronted with a board that is unwilling or unable to operate within the confines of the association's governing documents or the statutes and negotiations have failed, you have the following options:

    1. If your state has an agency that oversees and regulates HOAs, contact same and file a complaint;
    2. Create an ad hoc group of like-minded neighbors to hire a lawyer and confront the board;
    3. In the event #2 is not a possibility, hire a lawyer on your own to confront the board and possibly pursue injunctive relief;
    4. Mount an effort to recall the board;
    5. Wait until election time and vote in a more responsive and responsible board; and
    6. Failing all else, move.

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  • Retainer Agreement Language

    If you sign a Retainer Agreement where an attorney is charging $3,000.00 FLAT RATE that he will do all work involved for that price up until the time of settlement...wouldn't that mean that no matter HOW MUCH further work is involved he is still...

    Donna’s Answer

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    I'm going to give you the typical attorney answer: "It depends". Read the fine print. Better yet, have another attorney (perhaps a friend or relative) review the Retainer Agreement and advise if it is standard, acceptable, etc. Lawyer contracts are like any other contracts; they need to be reviewed carefully to ensure that you understand fully the terms of your agreement.

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  • Our HOA sent us a violation for a for sale sign in the wrong location. The new rule was put into effect June 2011.

    2 other house placed their sign in the same location & never receive any kind of notice or fine. When we placed our we received the notice, fine and it is still going on. I have sent my protect to the broad and they do not respond. Can we fill ...

    Donna’s Answer

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    If other owners have committed the same violation without action being taken by the board then you can assert an affirmative defense of selective enforcement in the board's action against you. You don't need to file a case against the HOA, you need to defend yourself in any action they may file against you. If you prevail in that case, you very well may be able to recoup your attorney's fees and costs. However, if you assert an affirmative defense of selective enforcement, you better be sure you are correct that the identical violation was committed and that no enforcement action of any kind was taken.
    If the association does continue to pursue you, you should also investigate to determine that the sign restriction was properly adopted and that the board even had the authority to pass one in the first place. Sometimes boards pass rules beyond the authority granted under the governing documents. Best to check and see if the rule is even valid. If it's not, that is another affirmative defense you can assert.

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  • Eviction process after purchased a foreclosed condo in Palm Beach, FL

    The condo I purchased from bank, which is just foreclosed, is still occupied. Condo HOA confirm that they are not tenants, HOA did not process their application as requested when they moved in, they are maybe friends or relativies of previous owne...

    Donna’s Answer

    As a third party purchaser at the lender's foreclosure sale, you are entitled to possessory rights and can exercise those rights via a Writ of Possession. I disagree with the advice above that you may need a separate legal action or a monetary inducement to get people out of the property you bought. Get a Writ of Possession. Of course, you don't want to "sit on your rights" so be sure you seek a Writ soon after taking title in these kinds of circumstances. Also, there is the National Protecting Tenants at Foreclosure law so you may have to wait 3 months (or less depending on where you are in the timeline) to eject the occupants if they were bona fide tenants and if they assert this law's protections when served with your Writ.

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  • Water line broke under slab of my unit. Is the HOA responsible for the damages?

    The HOA said they are not responsible for the damages in the unit that was a direct cause of the water flooding my unit and the light bill cause the water was running throw the water heater first before going in the ground. I have been telling the...

    Donna’s Answer

    You use the term HOA but many people do use that term indiscriminately to refer to any kind of community association

    If you live in a condominium association (which can also be the case if you have attached townhomes) then a burst pipe is a casualty event and the condo association will be responsible for replacing damaged drywall and baseboards. If you can prove the association was negligent by refusing to check out the pressure problem, then the association could be responsible for more than the basics I just outlined.

    If you do live in an HOA, your starting point is to review (or have an attorney review) your governing documents to determine who is responsible to maintain, repair and replace the water line. The answer to that question will dictate whether or not the association should be responsible for the damage your property sustained. The same negligence issue above may also come into play depending on what your documents say.

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  • What can I do about my neighbor's cigarette smoke entering my condo?

    I live in a condo and I have smoke coming into my unit from my neighbor. I have contacted the neighbor to no avail. The HOA said they would get back to me and never did. I have emailed them 3 times. I am going to send a certified letter but I ...

    Donna’s Answer

    There is only one Florida case I have found on this and it is a 2005 Broward County court case that is not published so it has minimal precedential value but it is certainly persuasive. That case is Robin Hanes Merrill v. Jim Bosser, Case No. 05-4239 COCE 53.

    In that case the Plaintiff who was a condo owner sued her smoking neighbor for damages based on theories of trespass, common law nuisance and breach of contract. The Broward County Court found that the excessive nature of the smoke did constitute a trespass. The Court also found that the excessive secondhand smoke had created an actionable nuisance for the Plaintiff. The Broward County Court also cited the Court of Appeals of Nebraska which had held that to have the use and enjoyment of one's home interfered with by smoke, odor and similar attacks upon one's senses is a serious harm.

    Lastly, the Broward County Court addressed whethr the excessive secondhand smoke constituted a breach of the covenant of quiet enjoyment. The Court acknowledged that in Florida there was no case on point but relied on a Massachusetts Housing Court Ruling in 50-58 Gainsborough Trust v. Halle. The Halle Court ruled that while smoking is legal, secondhand smoke can be considered a breach of a quiet enjoyment covenant.

    The Bosser case have been discussing is a case where a Broward County condo owner sued another owner. It is not a case where an association sued the smoking owner or where an owner sued the association for failing to sue the smoking owner. You might want to stop focusing on the association and start focusing on your legal remedies against your neighbor.

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