Community Association Forum – Your Condo, HOA and Cooperative Questions Answered!

By: Donna DiMaggio Berger, Esq.

By: Donna DiMaggio Berger, Esq.

Regardless if you serve on your community’s board of directors, live in a shared ownership community or manage one, it seems that everyone has questions at some point as various issues crop up. This month’s column includes some common and not so common occurrences. Not every community has specific guidelines for holiday decorations nor have most communities confronted the issue of a “sober home” being operated inside their borders. However, both of these issues are of great concern to some boards grappling with how much control is advisable to maintain residents’ expectations pertaining to the place they call home. Speaking of boards, is it the incumbent board’s responsibility to screen incoming candidates for eligibility purposes? Read on to find out.

Q:      Halloween will be here soon and it is my favorite holiday. While I don’t think my display is excessive, my HOA has passed a rule limiting the number of decorations which can be displayed for any holiday as well as the length of time we can display these items. Is this legal?

A:      The starting point for determining whether or not a Board rule is “legal” is to find the source of authority for rule-making. The documents must confer the authority to the Board to pass rules. That documentary provision should also specify whether or not the board can pass rules without membership approval and whether or not the board’s rule-making authority pertains only to behavior and activities on the common areas or can include rules pertaining to individual unit/lot use.  Once you have determined that the Board has the power to pass rules, the next question is whether or not the particular rule you are scrutinizing is reasonable. In your example, if the rule is designed to prevent holiday decorations which constitute eyesores or perhaps present safety concerns due to size or number of items displayed, then it will likely be deemed reasonable. Also, a rule which states that decorations be removed within a reasonable time period after the holiday in question has passed also serves the reasonable purpose of maintaining the community’s aesthetics. A rule which prohibits displays for some holidays and not others would not likely pass muster. Boards considering this and other rules would be well advised to seek prior legal advice, particularly given this year’s U.S. Supreme Court ruling on disparate impact.

Q:      We just found out that a convicted felon has been serving on our condominium board for more than a year. Wasn’t the board supposed to screen new candidates for the board and does this director’s presence mean all votes taken while he was serving are now invalid?

A:      In Florida, convicted felons whose civil rights have not been restored for at least five years are not eligible to serve on community association boards. That being said, the shared ownership statutes do not impose an affirmative duty upon sitting boards to screen potential board candidates to determine their eligibility regarding prior criminal history. Some boards do include a statement on the Notice of Intent to Run form which requires the candidate to affirmatively state that he or she is not a convicted felon whose rights have not been restored. If a community wanted to take it a step further and screen candidates as a common expense, an amendment to the governing documents permitting such screening would be in order. Naturally, if a community decides to screen candidates for eligibility, that process should be undertaken consistently and not just with a certain agenda in mind.

Q:      I serve on my HOA board. We just learned that a recent new purchaser is operating a “sober home” in our community. Our residents are very upset about this. Our documents prohibit commercial use on the lots. Can we shut down this sober home?

A:      Many boards mistakenly believe that a commercial use restriction in their governing documents will allow them to prohibit an owner from operating a “sober home” facility inside the community. A “sober home” is typically designed to assist adults with substance abuse problems to deal with and overcome those problems in a group home setting. This kind of usage is cropping up in Florida homeowners’ associations.  Despite a community’s screening authority and clear use restrictions in this regard, local fair housing agencies have ruled that community restrictions cannot be used to restrict this kind of usage. As such, boards must speak with experienced legal counsel to determine if there are other factors which may be actionable such as a nuisance violation or violations of a corporate ownership restriction if the sober home is owned by a business entity. Dealing with a sober home situation is one of many situations which a volunteer board of directors should not undertake on its own. Discrimination claims are fraught with the potential for liability so proceed with caution.

 

Donna DiMaggio Berger is a Shareholder with the statewide community association law firm of Becker & Poliakoff. She can be reached via email at [email protected] or by phone at 954-364-6031. If you have a question you would like answered in an upcoming column please let Ms. Berger know!