Q: I hired a contractor to build a 6-foot-high wood fence for privacy/security on a portion of my property. I then received a certified letter from a law firm representing my HOA, telling me that I should stop the installation of the fence or be subject to fines.
According to the association manager, the fence I want to install is subject to the approval of the community’s developer as stated in the deed restrictions. The developer in this case is the HOA.
The manager said the HOA took over the role of the developer a few years ago. It is my opinion that others in this development have built fences and other improvements without board approval.
– A.S., Sarasota
A: I can understand your confusion. You must be wondering how the HOA can also be considered the developer of the community. The answer is that it is not, but may have been assigned some or all of the developer’s rights when the developer completed the sale of most or all property in the community and “turned over” the community to the homeowners.
This is how it works. In an older community or in the case of poorly drafted documents, the deed restrictions may reference only the developer’s authority to approve exterior changes or improvements, like fences. This is fine while the developer still runs the association and has property to sell. The problem comes when the developer sells out of inventory and no longer has an interest in the ongoing operation of the association.
In such a case, the owner-controlled board should seek from the developer an assignment of the developer’s architectural and other approval rights. Many times a developer will willingly give such an assignment; other times it may have to be negotiated. The assignment should be recorded in the public records of the county where the development is located to put current and prospective owners on notice of the HOA’s authority.
In addition to an assignment, following turnover the HOA should propose to the membership amendments to the deed restrictions to specifically reference the HOA’s approval authority. The board should also review any existing architectural review guidelines for sufficiency and possible amendment.
A number of defenses can be raised when an association attempts to enforce a restriction. They include selective enforcement if, as you say, others have been allowed to install similar fences.
If you complete the installation of the fence after being instructed not to do so, you do so at your own peril and should be prepared for a legal battle. Of course, I cannot predict an outcome of such a dispute, but I would recommend trying to find a way to avoid that.
I have written in this column about a similar dispute that I had with my own HOA in Naples many years ago. Although I chose not to challenge the board, only you can make that decision in your case. Just make sure that your decision is an informed one, and that may mean getting a legal opinion before proceeding.
Another option is to find out from the manager if all fences are banned, or just the type you are proposing to build. Believe it or not, compromise is often possible, even in an HOA.
GOOD POLICY MAKES GOOD NEIGHBORS
Q: I am the president of our condo association. There has been much discussion about the association having a “Christmas Party” last December.
Some have heard that this must be called a “Holiday Party” and that there is a law or legislation to support that. Can you shed some light on this subject, as I could not find anything on the Internet to support that position? – S.W., via email
A: I think the answer is not “must” but “should.” It is not illegal per se for a condominium association to sponsor a “Christmas” party.
The problem is that living in a condominium means living in the same small community as others who may have different views and beliefs, including those involving religion. Would you agree that using the term “Holiday” is more inclusive?
The fact that owners are talking about it means that someone was possibly offended. Next year, I would rename the party and avoid any dissention.
CORRECTION, ETC.
In last week’s column, I referred to a provision of the Condominium Act regarding how often an association may make assessments against units. The law provides that assessments cannot be made less frequently than quarterly, meaning that monthly is OK, semi-annually or annually is not.
Unfortunately, in the print addition, the word “more” appeared not “less.” So, more or less, that got screwed up, and I am sorry for any confusion.
While we are on the subject, if your documents do provide for the monthly collection of assessments, consider an amendment to make assessments payable quarterly. It cuts down on administrative costs and creates better cash flow.
Finally, I recently read an announcement that a Florida lawyer had been suspended by the bar for 91 days. His offense? He misrepresented his finances and equity status within his law firm to a cooperative apartment board in New York City.
He misinformed the board as to financing, and sought and obtained from his firm a letter that misrepresented (lied about?) his financial status so he would be approved by the board to purchase an apartment.
It is a very unlucky (translation: not very smart) lawyer who has both the bar and his board gunning for him at the same time. If hell hath no fury like a woman scorned, as the saying goes, whoever said that has not seen NYC’s co-op boards.
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years’ experience. She concentrates her practice on community associations and real estate. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to TEady@TH-Legal.com.
