New Neighborhoods–Apathy, Covenant Enforcement and Renter Rights

New Neighborhoods

By Gary A. Poliakoff and Ryan Poliakoff

Apathy, Covenant Enforcement and Renter Rights

Dear Poliakoffs,

We have a situation at our condominium–only one person has served on the board for several years, as no one else was interested.  When nothing was being done to maintain the building, we asked to see the financial records.  Two months later, with no response, we sought arbitration from the state and it was approved.  The president then hired counsel who sent a letter stating the property manager (who was fired after all this started) had not been given all the paperwork from the state.  Since then the attorney is refusing to cooperate.  What is our recourse?   Signed, D.M.

Dear D.M.,

Unfortunately, the shared ownership concept cannot work if unit owners are not willing to volunteer their time to serve on boards and committees.  The apathy that you are seeing at your property is the same apathy that we typically see in the broader national democratic process.  And, the answer is not simply to hire a management company to run the property.  It’s the board’s job to create the policies that a property manager follows.  If this doesn’t happen, buildings deteriorate due to the lack of maintenance, property values drop, and no one can account for association funds.

As the old saying goes, “It is better to light a single candle than to cure the darkness.” Become a leader in your community.  Organize a slate of directors to run for the board, and recall the sole sitting board member.  Once elected, bring in fresh, unbiased professionals to get your books and records in order and your property back to the standard you expected when you purchased your home.  The only way to solve this problem is for someone to take the bull by the horns and just do the work that’s required.

Dear Poliakoffs,

Our HOA is enforcing a landscape covenant requiring three palm trees in the front of each home as the builder and core communities (now defunct) had designed.  Over the years, the palm trees have died, and the landscape committee has approved some homeowners to replace the three trees with a single Christmas palm with three trunks.  This approval was later rescinded.  When our home was built, the landscaper put in one palm tree, which he stated was the requirement for our street as the home fronts are small.  Now that we are selling our home, we were sent an inspection report via the buyer’s title company that we are not in compliance.  The HOA is assuming that all homes on all streets in the community must have three palm trees in front.  Almost every home has one palm tree, except for those that were resold.  The HOA is requesting removal of the one palm and replacement with three new palms, to include permit fees and other costs.  Is this legal?     Signed, J.B.

Dear J.B.,

The Florida Homeowners’ Associations Act (Chapter 720) has very stringent guidelines when it comes to architectural controls and homeowners’ rights and privileges.  First and foremost, the authority of an HOA or architectural control committee to review and approve plans for architecture or other improvements located on a parcel is limited to the extent that the covenants, conditions and restrictions (CC&Rs) grant the board or the architectural control committee such power. In doing so, they must conform with the general principles of waiver and selective enforcement—if an association waits to enforce a rule against owners for a long period of time, or if they enforce the rule against some owners, but not others, that rule generally becomes unenforceable.  While the board might be able, prospectively, to require future landscaping to be in conformity to the initial landscape plan by declaring their intention to abide by the CC&Rs from a stated time forward, it is doubtful that the board, given the passage of time, could retroactively require any property owner to remove previously placed landscaping.

A more challenging issue is the HOA’s compliance with the Florida Friendly Landscaping Law.  That law prohibits HOAs from denying a homeowner the right to install Florida-native landscaping that is compliant with the law.  Florida Friendly Landscaping is found when Florida-appropriate native or habitat-friendly plants are used in the right places, watering is done efficiently, fertilizing is done appropriately, mulch is used, wildlife is attracted, yard pests are managed responsibly, yard waste is recycled, and storm water runoff is significantly reduced.  The law is designed to reduce the use of water and reduce water pollution.

Dear Poliakoffs,

Could you please advise where I can find the law stating that usage rights are transferred to a tenant when a condominium is rented?    Signed, R.D.

Dear R.D.,

Florida Statute 718.106(4) provides that when a unit is leased, a tenant should have all use rights in the association property and those common elements otherwise readily available for use generally by unit owners, and that the unit owner should not have such rights except as a guest, unless the tenant waives these rights in writing.

Gary A. Poliakoff and Ryan Poliakoff are co-authors of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living.  Gary Poliakoff is a founding principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is the Vice President of Management at AKAM On-Site.  Email questions to condocolumn@becker-poliakoff.com.  Please be sure to include your hometown.

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