Community Counselor October 1, 2007

Question:   The roads in our homeowners’ association are private.  Recently ¾ of our members voted in favor of installing speed bumps throughout our community.  A member that doesn’t want speed bumps told me to disregard the recent membership vote because it does not matter because if only one member objects, the association can’t install speed bumps. Is this owner correct?

Answer:    In general, the construction of speed bumps by an Association is a violation of the Floridalaw relating to an owner’s right to ingress and egress. F.S. § 720.305 (2) (c).  The leading case for this issue is Monell v. Golfview  359 So. 2d 2 (1978). Monell was a 1978 Palm Beach County case in which the Court held: . . .  homeowners with easement rights in a private roadway and their homeowners’ association had no right to construct speed bumps across the private road where the speed bumps violated another landowner’s meaningful easement rights to use the road for ingress and egress to his home.
            I recommend you  check with your Association’s attorney to see if your situation is similar to the facts set forth in the Monell case. If so, the owner is correct.

Question:  My condominium association’s declaration allows pets. The Board recently passed a rule limiting the maximum size of pets to 20 pounds. Is this legal?

 Answer: In case you are a potentially offending pet owner, please note that as a general proposition rules cannot be retroactively enforced.  To determine whether the Board’s recently made rule is valid, a “two-tier “ test is applied. In particular, the subject of the rule must be within the scope of the Board’s authority. Second, the rule must be reasonable and not arbitrary or capricious.
Based on the above test, for a rule to be within the scope of the board’s authority (the first part of the test), the rule must not conflict with any of the Declaration’s provisions or a right that might be reasonably inferred from the Declaration. As for the second part of the test, if the rule is uniformly applied and its enforcement is reasonably related to promoting the health, safety and welfare of the owners, the rule will pass the second part.
Having not read your Declaration, I am at a disadvantage. Generally speaking, placing a limit on the weight of a pet via the use of a Board made rule appears to conflict with your Declaration.

Question:  Our Board thinks the homes that have hurricane shutters installed for the entire hurricane season are ugly and detract from the appearance of our community. For next year, the Board wants to restrict when an owner can install their hurricane shutters. Is this legal?

Answer: Technically the Board’s actions are legal because there is no statute that specifically prohibits such restrictions. Nevertheless, restricting when an owner can install their hurricane shutters is a bad idea. I understand the detrimental effect hurricane shutters have on the appearance  of a community. However, unless the association actually owns and controls the shutters (the situation in many condos) the Board is subjecting the association to liability if a hurricane damages a unit or a home,  the owner will most likely sue the association claiming the Board’s actions led to the shutters being down during a hurricane.