Condos and HOA's

Appropriate vehicle and parking rules for your community

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A condominium or residential neighborhood can suffer detrimental effects to property values and the well-being of its residents if it does not have in place rules concerning residents’ and guests’ vehicles that the majority of the members in a community want. Condominiums have a limited number of parking spaces, and many newer gated communities have smaller front yards with limited driveway space and narrow streets.

If the number and types of vehicles permitted and locations where they can be parked is not controlled, a neighborhood can start looking like a used car lot.

For condominiums, you usually want to limit permanent residents’ vehicles to no more than two (2) and you may want to have assigned owner and guest parking spaces. Many times such assignments can be memorialized in the public records of the county so that owners know for sure what parking space or spaces are assigned to their unit. You may want to require residents and guest to register their vehicles with the association to make sure they are supposed to be there and you may even want to issue parking decals.

To protect the aesthetics in neighborhoods, you may want to have a rule that says owners must only use garages for the purpose of parking owners’ vehicles in the number of stalls the garages were intended for in order to prevent garages from becomes unsightly storage units. You can require that vehicles be parked in the garages (with a requirement that the garage doors remain closed when not in use) before vehicles can be parked in the driveways.

You may want to prohibit certain vehicles on the property (unless they can be kept in a closed garage hidden from view) such as recreational vehicles, boats, trailers, non-street licensed vehicles, motorcycles, panel vans, commercial vehicles not actively servicing the residence, inoperable, unlicensed, wrecked or vehicles obnoxious to the eye.

Although some communities prohibit trucks, because many people now have nice trucks as their main vehicle, you may wish to allow non-commercial trucks. You can distinguish between commercial trucks and trucks used like cars and allow trucks that are not used for a commercial purpose or have commercial markings on them. You could prohibit trucks from having tool boxes or commercial equipment in their beds as such would convert them into commercial trucks.

Last, you may want to adopt rules to prevent people from parking on the street (such street parking can prevent emergency vehicles from timely getting to those in need), on the grass or across the sidewalks in the neighborhood.

As people in condominiums and newer neighborhoods typically live closer together than in traditional neighborhoods on unincorporated county or city streets, it is important that vehicle restrictions are adopted and enforced to preserve and enhance the atmosphere of where the residents call their home. If your community is starting to look like that used car lot, maybe it is time to review whatever vehicle and parking rules are on the books and see if they need to be tweaked or just enforced.

If you are going to change or add new vehicle and parking restrictions, you will probably need to get a membership vote to approve amendments to your association’s governing documents to make them effective. Enforcement of vehicle and parking restrictions is not that difficult today with the proactive towing Statutes of Florida and remedies available through the courts.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condominium Associations

Use of security cameras in communities

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We are seeing more and more homeowners and condominium unit owners wanting to protect their property by installing security cameras. This can be a good idea but must be weighed against the privacy concerns of their neighbors.

Many homeowner and condominium associations also want to protect the common areas from vandalism and rule violations; such as in clubhouses and pool areas. Although cameras may not at first stop vandalism or violation of rules and regulations, they sure can be good for evidence needed to catch the perpetrators red-handed afterwards and the associations can then make them pay for damage done or rules broken.

Few declarations of covenants or declarations of condominiums address the ability to install and maintain security cameras, so in order to clarify the ability of owners to do so, many associations should consider amending their documents with something like the following:

For single-family homes: “Security cameras shall be permitted to be installed on an owner’s property, provided that such cameras are not visible from the street or other public area, the placement and use of such security cameras does not result in an improper view into another owner’s property, whether intentional or unintentional, but specifically excluding views from the front or side of the residence into the adjacent street or roadway and which might include some portion of the front yard or side yard areas of the property lying across the street or roadway, and the use of such security cameras is not used in a fashion to invade or disrupt any owner’s reasonable right of privacy. An owner’s failure to comply with the terms and provisions of this section shall constitute a nuisance under this declaration and a violation.”

For condominium units: “Unit owners may maintain security cameras within their units or on their lanais. However, no unit owner shall be permitted to maintain any security camera on or within their unit or their limited common element area appurtenant to such unit (such as their lanai) that is positioned in such a way as to film areas of the condominium property lying outside of their unit for which they do not have the exclusive use of.” Under this type provision, an owner can film the inside of their unit or their patio or lanai but no other parts of the condominium property that are shared by others.

For homeowners and condominium associations: “The association may, but shall not be obligated to, operate one or more cameras on the common areas for purposes of providing security for the property and its residents. In the event that the association does elect to use security cameras, each unit owner shall be deemed to have agreed, for such unit owner and such owner’s family members, guest and tenants, that the association is not and shall not be considered an insurer or guarantor of security for or pertaining to the property. The association shall not be held liable for any loss or damage by reason of failure in the security camera system or any other safety measures undertaken, each such individuals assume all risks for loss or damage to persons or property and to the contents of same, and each such individuals acknowledges that the association has made no representations or warranties related to the use and operation of security cameras.”
Associations must also understand not to place security cameras where a person has a reasonable expectation of privacy, such as in clubhouse restrooms, locker rooms or showers. People generally do not have an expectation of privacy in other common areas that are open to residents and guests.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condominium Associations

Older high-rise condos, co-ops must vote to opt out or install fire sprinklers

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Typically this time of year I report on all the new laws the Florida Legislature adopted in this year’s session that affect condominium, co-ops and homeowners associations. However, any bills that would have had major direct effects on the operation of community associations died in committees, so there is not much new to report.

One major fallout of the quiet session was the lack of any new bill extending the ability of associations to take a membership opt-out vote to avoid having to install expensive fire sprinklers in high-rise residences. In the past, every few years the Legislature amended the applicable statute which extended the opt-out vote since 2002. The last amendment was in 2010 wherein Section 718.112(2)(l), Florida Statutes now reads:

“Notwithstanding Chapter 633 or of any other code, statute, ordinance, administrative rule, or regulation, or any interpretation of the foregoing, an association, residential condominium, or unit owner is not obligated to retrofit the common elements, association property, or unit owner is not obligated to retrofit the common elements, association property, or units of a residential condominium with a fire sprinkler system in a building that has been certified for occupancy by the applicable governmental entity if the unit owners have voted to forego such retrofitting by the affirmative vote of a majority of all voting interests in the affected condominium. The local authority having jurisdiction may not require completion of retrofitting with a fire sprinkler system before January 1, 2020. By December 31, 2016, a residential condominium association that is not in compliance with the requirements for a fire sprinkler system and has not voted to forego retrofitting of such a system must initiate an application for a building permit for the required installation with the local government having jurisdiction demonstrating that the association will become compliant by December 31, 2019.”

Section 553.895, Florida Statutes, entitled “Fire Safety” is the statute that determines which buildings are considered high-rises that will need to either take a vote to opt-out or to pull a building permit to install sprinklers. Although the wording in the statute is confusing, we believe it says that if the construction contract for the building was let after Sept. 30,1983, buildings three stories or higher with interior corridors, or buildings over 75 feet in height with exterior corridors, will need to have sprinklers installed throughout the building and in the units unless an opt-out vote has been taken. If the construction contract for the building was let after Jan. 1, 1994 and the building is three stories or higher, sprinklers must be installed unless an opt-out vote is taken. It appears then that one- and two-story condominium and co-op buildings are in the clear and need not be concerned about this issue or taking an opt-out vote.

So if your high-rise condominium or co-op building does not have fire sprinklers in the units and the common areas of the building, your association will need to take the op-out vote before the end of this year or face the wrath of your local fire department, who will require you to install sprinklers, a very expensive venture. We suggest that the membership vote opt-out be taken sometime this fall.

This sprinkler requirement statute appears to have been originally pushed through the Legislature by those special interests whose business is to install fire sprinkler systems, which must be a very lucrative business. Over the years some folks representing condominiums and co-ops fought back by getting the Legislature to extend the deadline to add sprinklers or opt-out. It looks like this year the ones who always got another extension may have either dropped the ball or could not find a passable bill to latch another opt-out extension onto.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.
Condominium Associations

Snuffing out the smokers in condominium

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Even as of a few years ago, it was almost unheard of for a condominium building to go nonsmoking. Apparently there was fear that in doing so, property values would suffer as potential smoker purchasers would look elsewhere. This is no longer the case.

We are seeing more and more condominiums going to nonsmoking. To do so, enforcing a house rule passed by the board of directors of the association would be difficult as such a rule would arguably be considered unreasonable to many owners (especially smokers). Under the law, board rules must be.

However, if the owners in the building vote to amend their Declaration of Condominium to go nonsmoking, such a regulation is enforceable as such a regulation would not be considered arbitrary, capricious or unconstitutional even though arguably unreasonable. Declaration covenants, because they are approved by the owners, can be unreasonable as long as they are not arbitrary, capricious or unconstitutional.

The biggest problems most buildings see with smoking is residents smoking on their lanais where the smoke creeps to other lanais and units making it difficult for neighboring residents to enjoy their units and lanais when the smokers are smoking around them. Another problem is that when heavy smokers smoke inside their unit, the smoke can travel through the walls to adjacent units.

Therefore, most amendments will prohibit smoking in the units, on the lanais, or anywhere on the common elements except at smoking area(s) designated by the board of directors from time to time. It is good to have one or more designated smoking areas somewhere on the common areas (usually in the pool or barbecue vicinity) so even if the owners in the building may not smoke, there will be a place for their guests and tenants to smoke where nonsmokers will not be bothered.

To get such an amendment approved in buildings that do have quite a few owners who smoke, a building might want to grandfather allowing smokers in residence to continue to allow them to smoke in their units or on their lanais, until they move away, as long as they don’t unreasonably disturb their neighbors with their smoking.

Apparently going to no-smoking buildings does not appear to be hurting property values and more and more condominium buildings are saying it is now time to go no-smoking for the benefit of the large majority of nonsmokers in the buildings.

First it was airplanes, then indoor restaurants and bars, and now it looks like condominium buildings where people live in proximity to each other. We understand that many new apartment complexes in some cities are now opening as nonsmoking for the same reasons.

Rob Samouce, a principal attorney in the Naples law firm of Samouce & Gal, P.A., concentrates his practice in the areas of community associations including condominium, cooperative and homeowners’ associations, real estate transactions, closings and related mortgage law, general business law, estate planning, construction defect litigation and general civil litigation. This column is not based on specific legal advice to anyone and is based on principles subject to change from time to time. Those persons interested in specific legal advice on topics discussed in this column should consult competent legal counsel.