Rules and Restrictions

December 26, 2022

Common Community Association Restrictive Covenants and Why They Exist

by Roberto C. Blanch

Roberto C. Blanch

For all those who reside in communities governed by homeowner associations or are buying into one for the first time, you should be aware of documents referred to as the covenants, conditions and restrictions of such community, or CCRs in industry parlance for short. These CCRs, together with an association’s articles of incorporation, by-laws, and rules and regulations, comprise the governing provisions with which all owners in a community must abide, and they are given the effect of a legally binding agreement to which all the owners governed by the association are bound.

For some sprawling HOA communities, minimum square-footage requirements are common provisions found in such covenants. These restrictions on the size of homes within a community are aimed at maintaining uniformity as to the types of homes located within it. Homes that are too small or too big by comparison to all the others might be considered to have a detrimental effect on the property values for the enclave.

Architectural restrictions covering property improvements are also almost always in place. Again, the goal with these is to help ensure architectural aesthetics and cohesion. Homeowners and the architects they hire must pay careful attention to the architectural planning criteria to which all modifications or improvements to homes within a community must abide so as to keep in compliance with the association’s standards and to uphold its community appeal.

November 20, 2022

Firm’s Latest Miami Herald Column by Evonne Andris: “Response to Negative TV News Report by HOA Shows How It’s Done”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column is authored by partner Evonne Andris and appears in today’s edition of the newspaper. The article, which is titled “Response to Negative TV News Report by HOA Shows How It’s Done,” focuses on a recent case from San Antonio, Texas, involving a homeowner’s car that was wrongfully towed by her HOA. As often happens in such instances of community association missteps, the homeowner responded by reporting the incident to her favorite local TV news station. Evonne’s article reads:

. . . “We looked into the claim,” begins the story from KENS 5, the city’s CBS affiliate. Jennifer Holmquist tells the station her son’s car was suddenly gone from their driveway, and they were about to report it stolen when they learned it had been towed by the Mountain Lodge Homeowner’s Association with no advance warning.

“Nothing on the door, no phone call, no email,” she complains to the reporter. She also bemoans that she was told by the towing company it would cost $300 to get the car back.

In similar situations of community association disputes across the country, what typically follows is an account of how the reporter attempted to get a response from the association, but none was forthcoming. In some cases, the journalists receive a written response from the association’s attorney that defends its actions and holds firm that they were in accordance with the community’s policies and regulations.

However, when the acts taken by an association are in error, simple no comment responses or those focusing on community policies and regulations may not be the best position to take. Such cases highlight the importance of a well thought out response. In this situation, it was verified that the removal of the vehicle on the community’s behalf was the result of a miscommunication with the HOA’s towing company, so the association and its board of directors had a decision to make.

November 10, 2022

New CAI Public Policy on Sign, Flag Restrictions in HOAs Calls for Allowing Communities to Decide What’s Right for Them

by Laura Manning-Hudson

Laura Manning-Hudson

The Community Associations Institute, the leading organization representing the interests of community associations, recently brought some added clarity into the national conversation over restrictions of political and social-cause yard signs and flags in HOA communities. It issued a new public policy recommendation in October prior to the midterm elections to help its state legislative committees chart their work on this topic.

The organization’s new Political and Noncommercial Signs and Flags Public Policy reports that 13 states already have laws addressing signs. It notes that the First Amendment guarantees the right to freedom of speech without restriction by government entities or state actors, but it does not apply to private parties such as community associations.

CAI-signs-policy-300x204 “CAI respects the right to freedom of speech set forth in the constitutions of the United States and various states but recognizes that right is not unlimited. CAI also recognizes and supports the rights of residential community associations to reasonably regulate political and noncommercial signs within communities in a manner consistent with federal, state, and local laws. CAI supports legislation that recognizes the core principles of self-governance, self-regulation, and co-ownership of common property and the community association housing model balanced with owners’ rights of free speech. Because each community is unique, legislation should allow an association to develop reasonable rules and regulations concerning the time, location, materials, size, number, and manner of where political and noncommercial signs, political displays, or political activities are located while preserving freedom of political expression,” reads the organization’s policy statement.

September 25, 2022

Miami Herald Real Estate Law Column Authored by Roberto Blanch: “HOA Policies on Signs, Flags Require Diligent Discussion and Deliberation”

by Siegfried Rivera

Siegfried Rivera

The firm’s latest Miami Herald “Real Estate Counselor” column was authored by partner Roberto C. Blanch and appears in today’s edition of the newspaper. The article, which is titled “HOA Policies on Signs, Flags Require Diligent Discussion and Deliberation,” focuses on the issues surrounding yard signs and flags in HOA communities that often arise prior to presidential and midterm elections. Roberto’s article reads:

. . . Many community associations have already established rules covering yard signs, flags and displays, as they have been a long-time cause of questions and concerns in gated enclaves. Even the Florida legislature weighed in on the matter years ago by enacting a state law prohibiting HOAs from banning respectful displays of the U.S. flag as well as the state flag and those of the branches of the armed services.

For community associations that have not yet addressed policies regarding yard signs and displays, taking a proactive approach may well be the most effective option for such a significant and recurring issue. Enacting policies could help to minimize the potential for discord that may arise if neighbors with opposing viewpoints try to outdo each other with walls of signs at their property lines. Not only would such displays be unsightly; they could also significantly compromise harmony within the community and the adherence to mutual respect among fellow owners/residents.

The place to start, as with most matters involving the enacting of new rules and restrictions, is with a careful review of an association’s governing documents by qualified legal counsel. The terms of an association’s declaration, by-laws and articles of incorporation — together with an analysis of the applicable statutes — will guide the decision establishing the approach which should be taken to make the changes. While at times it may be necessary to conduct and obtain votes of a community’s owners to amend the restrictive covenants, some restrictions may be more easily achieved by having the board of directors modify existing rules or enacting new rules.

September 19, 2022

Florida HOAs Can Restrict Vegetable Gardens

by Roberto C. Blanch

Roberto C. Blanch

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.

Proponents 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.

September 11, 2022

Miami Herald Real Estate Column by Shari Wald Garrett: “Drones Can Get Tempers Flying High in HOA Communities”

by Siegfried Rivera

Siegfried Rivera

The 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.”

Interestingly 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.”

July 31, 2022

Miami Herald Real Estate Column by Jonathan Mofsky: “Ruling Shows Pitfalls of Associations Enacting Changes Without Required Votes”

by Siegfried Rivera

Siegfried Rivera

The 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.

The 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.

July 22, 2022

Rules, Enforcement Are Keys to Reining in Bad Behavior, Promoting Safety in Community Pools

by Nicole R. Kurtz

Nicole R. Kurtz

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. The 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.

March 22, 2022

Boca HOA Sues Homeowner for Dilapidated Property

by Michael Toback

Michael Toback

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.

Such 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.”

January 28, 2022

Important Takeaways for Community Associations from TV News Report on Rules Enforcement

by Laura Manning-Hudson

Laura Manning-Hudson

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.

The 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?