Hello, I was wondering, given that we have a number of adults that want to use the pool to swim laps and without all the splashing, can we have an adult swim?

KC Bernadine


(267) 571-9418

Unless the community is an active adult (over 55 community) limiting children’s times in a pool can be perceived as discriminatory.

Not to be fresh, but if you are or around a pool you need to expect to get wet or splashed.

If you are in an over 55 community, it’s pretty safe to have time that is scheduled lap swimming or time when classes are being help that children are not permitted.

If you are not in an active adult community there are some things you can do without having adult only swim time:

  • Designate areas of the pool for lap swimming. Lap lanes can be limited to swimmers over a certain age and used only for swimming or walking laps.
  • Another area can be roped off for younger children who tend to splash. A swim test would be required for children to swim outside of that area.
  • Implement rules about no splashing or jumping off the sides.
  • Limit the use of ball playing , water guns, or use of floatation devices such as noodles that can be used to slap the water.

You want the community pool to be a welcome place for all so look at your pool rules and the boundaries within the pool itself and set some limits that will keep your pool a peaceful but fun place for all.

What’s the difference between a proxy and a ballot?

KC Bernadine


(267) 571-9418

Once a year community associations will hold an annual meeting and an election to fill a position(s) for officers on the Associations Board of Directors.

Each community has a process which is dictated by the associations governing documents on how these elections are held and how votes are counted. Once the Association has potential candidates and the names and biographies of those candidates have been sent to the homeowners there are a few ways that Homeowners can vote.

Votes can be obtained using:

An Absentee Ballot or by Proxy

So, what is the difference?

A Ballot is a document which lists the candidates that are running for the position on the Board that completed at the election meeting by the authorized representative of that unit (the homeowners) If a homeowner is not able to physically attend the meeting some documents allow the homeowner to fill in an Absentee Ballot in advance of the meeting. This is the same document as a Ballot but can be mailed or emailed in to management and is counted as a vote even though the homeowner is not present at the meeting. Some Association Documents require a Proxy to be presented as opposed to an Absentee Ballot. A Proxy is a document which designates someone else to cast a vote on behalf of the authorized voter. Some association documents automatically designate the Board Secretary as the proxy designee and some allow the homeowner to choose another designated voted such as another homeowner.

A Proxy is turned in prior to the election meeting as is the absentee ballot. Both a Proxy and an Absentee Ballot count towards quorum. Rad your documents to see what is permitted in your association and in what time frame these documents must be presented to the homeowners.

How does the insurance for my association work? What am I responsible for?

KC Bernadine
(267) 571-9418

Insurance coverage for your home is anything but simple when you live in an HOA or COA. Some people think that if they live in a Condominium or Homeowners Association that they don’t need to purchase individual homeowner’s insurance. Another misconception is that all exterior items on a Condo or an HOA are the Associations responsibility and that damage to or caused by those exterior elements are covered by the Associations policy. Unfortunately, is not that easy or simple. First of all, every association is different on who is responsible for what and what and when damage is covered by the associations insurance policy.

Some people think all exterior items on a Condo or an HOA the Associations responsibility and that damage to or caused by those exterior elements are covered by the Associations policy.

Unfortunately, is not that easy or simple. First of all, every association is different on who is responsible for what and what and when damage is covered by the associations insurance policy.

So where do you start?

We start by looking at the association governing documents. These documents will tell you:

  • Your unit boundaries
  • What element of your unit is considered part of the unit, a limited common element or a common element and who is responsible for what.
  • The insurance coverage that the association is required to carry.

Next you want to know about the association policy, what it covers and what the deductible is.

Most insurance carriers will provide management with a letter to send to all the homeowners every year. This letter explains what kind of policy you should have and what the deductible is.

If you live in a Condominium, the coverage you will need is called an HO6 policy. You want to make sure that this policy will cover you up to the Associations deductible. The reason being is that if there is damage to your unit, and the cost to repair that damage fall under the associations deductible, the associations policy will not cover the damage, regardless of the cause.

This policy should cover your personal property, and loss of use.

If you live in an HOA, the policy you want to look into is called an HO3 Policy. Again, start by looking at the associations coverage and deducible.

This policy is more involved that an HO6 because it will cover the replacement cost of the entire dwelling, your personal property and contents, additional living expenses and liability. You want to look at the associations coverage and deducible as well.

If you own the property as an investment and have a renter in the unit, you should require that they have an HO4 or renter’s insurance policy.

Every community is different therefore the coverage in each community differs, but you want to be covered.

So here are a couple of scenarios where people get confused about coverage in an association:

There is a leak in the roof of the condominium after a rainstorm. A unit owner on the top floor has water stains on the bedroom ceiling caused by that leak. The Association is responsible for maintaining the roof and it leaked, who pays for the damage?

That depends on the cost to repair the damage.

Management should always direct the homeowner to call their insurance agent first and foremost. The agent will come out and assess the damage. If the cost to repair the damage is under the associations deductible, then the association is under the associations deductible, then the association is not involved, and the homeowner may or may not want to put a claim into their individual policy.

A main sewer stack that services multiple units in a building broke causing damage to the interior of a unit. The associations deductible is $2,500 and the cost to repair the damage to the unit is $5,000. Who pays now?

Again, the homeowner first submits the claim into their own Homeowners insurance policy. The Individuals homeowner’s agent will contact the Associations policy holder with the claim and estimate of repairs. The individual’s policy will pay up to the amount of the ($2,500) deductible and the associations policy will pay the cost of what left over the deductible. ($2,500)

The water heater on the third floor of a midrise condominium leaked into the unit on the second and first floors causing considerable damage to each unit. Who pays for the damage?

Once again, the unit owners who sustained the damage need to call their insurance agent. This is a situation where it is between homeowners and their insurance agents. Agents will communicate and subrogate as to who is responsible for what.

The scenarios for each association will vary depending on how the governing documents read, the associations policy and it’s deductible.

The best way to protect yourself is to know your community’s documents, ask management for a copy of the Declaration Pages of the Associations insurance policies and provide them to your agent. Encourage your agent to talk to the Associations agent to ensure that you are fully covered in case of a claim.


A resident is demanding copies of attorney invoices, but aren’t these subject to the attorney-client privilege?

Martin C. Cabalar
Becker & Poliakoff
(973) 898-6502 mcabalar@bplegal.com

The simple answer is: it depends. While “it depends” is not the most satisfyingly complete answer, owners generally have a right to see our invoices. However, when an invoice pertains to or contains attorney-client privileged information, your counsel should review them and redact any part of the privileged narrative.  Examples of attorney-client privileged information that would have to be redacted include entries related to individual privacy, pending or anticipated litigation, contract negotiations, the employment, promotion, discipline or dismissal of a specific officer or employee of the association, or any other matters falling within the attorney-client privilege, to the extent that confidentiality is require in order for the attorney to exercise his ethical duties as a lawyer.


Generally, we would advise our community associations to inform an owner requesting access to the association’s counsel’s invoices that if they wish to review the content of legal invoices, rather than just the amounts billed, they must first be reviewed by counsel, so that any entries which are protected by the attorney-client privilege can be redacted. While that work is not a significant undertaking, the association should not make the determination as to what is or what is not subject to the attorney client privilege or attempt to undertake the redaction on their own without the advice of counsel. An entry as innocent as “discussed contract negotiations with the Board and landscaping contractor” may be an attorney-client protected communication.


The cost to review and redact the invoices should be charged to the requesting unit owner and not as a common expense to all unit owners. While owners may argue that you are attempting to prevent them from seeing the invoices, this is not the case at all. Owners are permitted to see the amount of each invoice, but they are not permitted to review narrative entries which contain attorney-client privileged communications.


Finally, while an owner may argue that they “pay our bill” or that they are our client and therefore have the right to see the narrative entries on our invoices, the individual unit owners are not our clients. Yes, the unit owners pay the common expenses fees, which fund the association’s legal expense, but our client is the corporate entity which acts through its governing board.  reserves.  Think about making rules that have real meaning to your community.


If your governing board receives a request to review the association’s attorney’s invoices, we recommend that you first consult with and seek the advice of your counsel before providing copies to a unit owner.

Can HOA boards be required to sign a code of conduct document?

The simple answer is yes if the board allows it. The code of conduct could be incorporated into the bylaws and signing could become a requirement for sitting on the board. The advantage of a code of conduct is that it holds all of the Board members to the same set of standards and provides guidance for future boards.