NOTE: Our Client Portal is Currently Undergoing Maintenance

Subscribe by Email

Articles Posted in Rules and Restrictions

A 2019 Florida law is sometimes a source of confusion for board members and owners in HOA communities over whether their association can restrict or ban yard vegetable gardens in their communities.

The uncertainty stems from the Section 604.71, Florida Statutes, which states that no county, municipality, or other political subdivision in Florida can regulate vegetable gardens on residential properties. However, HOAs, condominium associations and cooperatives do not fall under the category of “political subdivisions,” which are typically separate legal entities of a state that usually have specific governmental functions. Examples include a county, city, town, village, school district, and other subdivisions with a governmental legal status. Community associations are private not-for-profit corporations, and while they may govern over their communities, they are nongovernmental entities with powers that are codified by state law.

So, while counties and municipalities in Florida cannot regulate or ban front-yard vegetable gardens, HOAs can and often do restrict them.

Vegetable-Garden-300x200Proponents of vegetable gardens in HOAs reference many benefits associated with permitting vegetable gardening within the boundaries of private lots within HOAs, including the promotion of sustainable food production, improved health and cost savings. However, those opposed to the activity within HOAs may reference some concerns, such as potential for attraction of pests and vermin, the creation of a mismatched aesthetic community landscape, and the possibility of overgrowth which may diminish visibility required for safe pedestrian and vehicular traffic.

Continue reading

Shari-Garrett-002-200x300The latest edition of the firm’s “Real Estate Counselor” column is authored by partner Shari Wald Garrett and appears in today’s edition of the Miami Herald.  The article, which is titled “Drones Can Get Tempers Flying High in HOA Communities,” focuses on the issues stemming from the use of drones in communities with associations and the types of restrictions that many communities are putting in place.  Her article reads:

. . . Owners and residents in HOA communities across the country have expressed concerns over drones equipped with cameras being capable of surveilling their properties and backyards. There have also been outcries that have made local media headlines over associations’ use of drones.

To address these issues, the Florida legislature enacted in 2015 the “Freedom from Unwanted Surveillance Act,” which bans the use of drones “equipped with an imaging device to record an image of privately owned real property or of the owner, tenant, occupant, invitee, or licensee of such property with the intent to conduct surveillance on the individual or property captured in the image in violation of such person’s reasonable expectation of privacy without his or her written consent.”

The law further clarifies that a person is presumed to have a “reasonable expectation of privacy on his or her privately owned real property if he or she is not observable by persons located at ground level in a place where they have a legal right to be, regardless of whether he or she is observable from the air with the use of a drone.”

SGarrett-clip-for-blog-9-11-22-101x300Interestingly for municipalities and possibly also for licensed community association managers acting as agents of associations, the law does not prohibit the use of a drone “by a person or an entity engaged in a business or profession licensed by the state, or by an agent, employee, or contractor thereof, if the drone is used only to perform reasonable tasks within the scope of practice or activities permitted under such person’s license.”

Continue reading

Jonathan-Mofsky-2021-2-200x300The firm’s latest “Real Estate Counselor” column in today’s Miami Herald is authored by partner Jonathan M. Mofsky and titled “Ruling Shows Pitfalls of Associations Enacting Changes Without Required Votes.”  It focuses on a recent ruling by Florida’s Fifth District Court of Appeal that illustrates the potential consequences of associations that undergo alterations to their amenities and enact rule changes without the required vote and approval of their unit owners.  Jonathan’s article reads:

. . . The case initially stems from a filing for mandatory non-binding arbitration with the Division of Florida Condominiums, Timeshares and Mobile Homes under the Department of Business and Professional Regulation. Michelle and Kevin Flint, owners of several units at the Lexington Place condominium in Orlando, objected to the condo association’s elimination of a common element dog park and a court for wallyball (i.e., a sport similar to volleyball played on a racquetball court). They alleged the association performed these material alterations without a vote and majority approval of the unit owners in violation of its own declaration of condominium.

The Flints also challenged a board-enacted rule that prevented tenants from maintaining pets at the condominium, which they claimed violated the pet restrictions contained in the declaration.

JMofsky-Herald-clip-for-blog-7-31-22-103x300The couple prevailed in these proceedings on both issues. However, the association chose to escalate the matter by filing a lawsuit in Orange County circuit court based on the same arguments originally presented in arbitration.

The circuit court also ruled in favor of the Flints and affirmed the arbitrator’s decision. After considering the different provisions in the association’s declaration as well as the arguments of the parties, the court found that because the association’s declaration required approval by a majority vote of the unit owners prior to performing the alterations, the association’s board of directors alone lacked the authority to eliminate the community’s dog park and wallyball court.

Continue reading

In South Florida, the pool is an extremely popular and widely used community amenity. While community pools can be a great source of joy and relaxation for residents and their guests, they can also sometimes become a focal point of strife and confrontations.

Given the propensity for certain issues to arise, and in hopes of preventing them, associations are well advised to establish and enforce pool-use rules for their communities. Such rules, which should be comprehensive and cover a wide array of use and operations matters related to the pool and the pool deck including opening/closing times, guest capacity, noise, horseplay, swimwear, diving, smoking, drink/food, and more, are truly essential for associations to maintain order and diminish potential legal liabilities.

With the help of qualified community association legal counsel, who will always begin by checking an association’s governing documents to ensure it follows the prescribed process for adopting enforceable pool rules, associations should develop fair and reasonable rules that are designed to promote the efficient and safe use of the amenity. comm-pool-300x200The goals and purposes behind every rule should be clearly evident from its very nature, and any changes and additions to the rules and their enforcement should be discussed with both experienced legal counsel and property management prior to implementation.

Continue reading

For homeowners’ associations governing communities of single-family homes, one of the most difficult balancing acts to uphold is that of enforcement actions required against noncompliant homeowners over the physical state of their property. In the minds of many Americans, community associations have a negative perception and stigma for overzealous rules enforcement, but yet they cannot allow individual owners to flout important policies that help to maintain their communities’ property values.

After unsuccessful attempts to persuade an intractable owner to comply with the language provided in an association’s governing documents, the time may come to file a lawsuit against the violating member. While such action should not be taken lightly due to the potential costs and uncertainties of litigation, such lawsuits may be the only recourse left to associations facing obstinate owners who refuse to comply.

bbathandt-300x200Such appears to be the case with a recent lawsuit filed by the Boca Raton Bath & Tennis Club HOA against homeowner Lynn Min for alleged violations of several provisions found within the community’s governing documents. The suit, which was covered recently by www.BocaNewsNow.com, states:

“Owner is in violation of the provisions cited [in the governing documents] by virtue of their Property being in a state of disrepair, including a lack of maintenance to the home’s structure and roof, the exterior of the Property needs to be painted, the sod needs to be replaced, and the irrigation system is defective and needs to be repaired.”

Continue reading

A report that aired in late November on 7News (WSVN-Fox) in South Florida focused on a local renter in a dispute with her condominium association over her motorcycle. While the property’s rules ban motorcycles, the tenant had apparently been explicitly told she would be allowed to keep and park her motorcycle at the property prior to signing her lease. Three years later after she’d been using and parking her motorcycle at the property without complaint, she received a notice from the association indicating that it had to go or it would be towed.

It appears that the tenant’s response was to call or email the TV station’s tip-line, and the end result was another thoroughly investigated and highly informative “Help Me Howard” segment by its senior reporter Patrick Fraser and long-time legal expert Howard Finkelstein.

The report chronicles how Alexa Polcyn had been allowed to use and keep her motorcycle at the property for over three years until the association suddenly began “hassling our landlord about it.” She tells Fraser that she had noticed the restriction on her lease but was expressly told by the association that her motorcycle was not going to be an issue.

wsvn-logoThe association was apparently true to its word until three years later in late 2021 when it decided it would begin enforcing its motorcycle ban. It issued her a written notice that the motorcycle had to go, so the question for the station’s legal expert was whether the association could now change its mind on an exception to its rule that it had previously granted?

Continue reading

My fellow South Florida community association attorneys at our firm and I have noticed an increased number of media reports about condominium and HOA disputes in 2021.  Laura Manning-Hudson and I have written about a few of these in this blog in recent months.  Typically, these situations arise due to what may be characterized as an inadequate and ineffective response by the associations involved, and sometimes they are created by inadequate planning.

However, a recent report by NBC affiliate Channel 8 News (WFLA) in Tampa about a dispute over holiday lights at a local HOA provides a good example of the type of response that communities can offer to help mitigate difficult circumstances that may adversely affect the fabric of the community.  The response by the association’s attorney in an on-camera interview with the station’s reporter goes a long way towards balancing the entire story, and it may even pave the way for a positive outcome that could be the subject of a future report by the station.

The station’s story chronicles how the Moffa family of the Westchase community hired a company to install holiday lights on their roof and front yard on Nov. 6. Mr. Moffa tells the station’s reporter that the early date was the company’s only availability, and he was unable to climb up on the roof himself.

WFLA400-300x225As a result, he and his family are now facing fines for violating the Westchase Homeowners Association’s rules and restrictions, which state holiday lights cannot go up before Thanksgiving. The letter from the HOA, which he shares with the reporter, indicates the family could be fined $100 dollars a day, up to $1,000, if they refuse to remove the lights, which apparently is exactly what they intend to do.

Continue reading

Yet another highly questionable decision by a Florida condominium association has made local TV news.

The latest condo dispute to make the local evening news involves a New Smyrna Beach, Fla., owner who was denied the transfer of another unit at the same property from her late husband to her after his passing. According to a report by Channel 9 News (WFTV-ABC), Joan Cotton was denied the transfer of the additional residence that her late husband Jeffrey had owned for more than a decade by the board of directors for the condominium association for the Village of Colony Beach Club.

The community’s governing documents apparently allows for its board to approve or deny the transfer or sale of units in the community for any reason. The Cottons owned two units in the community: a single bedroom residence under her name, and a two-bedroom condo under his name in which they both resided.

She received a notification from the association indicating that the board of directors has voted to deny the transfer, and instead it has entered into an agreement to sell the unit to a third-party buyer for $466,500. wftv2-300x169The letter included a check to her for an initial down payment of $5,000 from the hopeful buyer, but her attorney has vowed to fight the association’s decision and says the closing is never going to happen.

“I started shaking, I started to cry,” Cotton says in the report. “It was horrible. You can’t just steal my condo!”

Continue reading

Nicole-Kurtz-2014-200x300Michael-Hyman-srhl-lawAn article authored by the firm’s Michael L. Hyman and Nicole R. Kurtz was featured as the expert guest commentary column in the online edition of today’s Daily Business Review, South Florida’s exclusive business daily and official court newspaper, and will soon be appearing in the “Board of Contributors” page of the print edition.  The article, which is titled “DOJ Discrimination Suit Over Shoes Left Outside Holds Lessons for Community Associations,” focuses on a decision by a Florida condominium association and its board of directors to refuse to grant an accommodation to allow an owner to leave his shoes outside the front door of his unit in a condominium building with outdoor walkways.  As a result, the association now faces a costly and potentially dire federal discrimination lawsuit brought against it by the U.S. Department of Justice alleging it committed various violations of the Fair Housing Act.  Furthermore, the entire matter has also been chronicled online in an extensive news report by The Daily Beast.  Their article reads:

. . . The website’s article begins by noting that Charlie Burge, the unit owner who sought an accommodation that would allow him to maintain his shoes outside his unit’s front door, is a 9/11 responder who suffers from medical ailments stemming from his front-line work at the World Trade Center site. Before moving to Florida, he had worked for the New York City Department of Sanitation for 35 years, and he spent more than 400 days clearing debris at ground zero. As a result of this work, the article states that Burge suffers from upper respiratory issues, gastrointestinal ailments, skin cancer and PTSD; all of which federal officials have certified as being related to cleanup work performed at the WTC site.

dbr-logo-300x57After he retired in 2015, Burge and his wife Anna moved to a residence they owned at the Links South at Harbour Village, a condominium community on the Ponce Inlet south of Daytona Beach, Florida. In order to avoid aggravating his symptoms, and on the advice of his doctor, the couple began leaving their shoes outside of their front door. As their door is set back by several feet from the outdoor open-air walkway of their building, they were able to keep their shoes in a spot where they would not block anyone’s path.

Continue reading

My colleague Laura Manning-Hudson wrote about a dispute involving pet chickens that received unwanted TV news coverage for a Boca Raton HOA in her last blog post.  To help illustrate just how common such negative media coverage has become for community associations that make questionable decisions, my latest post just a couple of weeks later also focuses on another report by a local South Florida station involving disputed community association actions.

The latest story is on a Hollywood, Fla., condominium association’s decision to deny a 100-year-old resident a gate access pass decal for her to use when she is getting a ride home. The report by 7 News (WSVN-FOX) in South Florida features an interview with Vangie Commeau, who lives at the Carriage Hills Condominium and is 100 years old. She tells the station’s Patrick Fraser that earlier this year the property cancelled the manned security guard at its entrance gate in favor of an automatic scanner that reads bar codes on window-sticker decals on residents’ vehicles to open the gate.

wsvn-logoBecause Commeau does not own or drive a vehicle, she did not receive a decal from the association. She tells the reporter that she brought it to their attention, but the association responded by declining to issue her a gate access decal pass.

This creates a burden for Commeau when one of her friends takes her to the doctor or to one of her monthly lunches with their friends, as she is unable to get their vehicle in through the residents’ gate when they return. She was told to use the guest lane and buzz one of her neighbors to let her in, but she notes that forces her to make an appointment with a neighbor a day ahead.

Continue reading

Contact Information