Can Homeowners’ Association Board Restrict Fences?

Question:       My homeowners’ association board of directors sent out a new set of guidelines that they intend to adopt. There are a number of provisions that limit what an owner may do with their private property. For example, it states that while fences are permitted, they may only be privacy fences constructed of particular materials, and chain-link fences are prohibited. Also, there is a list of authorized colors that owners can paint their houses. While I understand that the homeowners’ association is there to protect every owner’s property value, these rules seem to be over the top. Can the association tell me what type of fence I can put up or what color I can paint my house? (R.D. via e-mail)

Answer:        Maybe. The first issue to always consider is what the community’s governing documents say concerning the board of director’s authority to adopt such restrictions. Declarations of covenants routinely contain requirements that alterations that are visible from the exterior of the lot be approved by either the board of directors or an architectural review committee. Some declarations also contain specific requirements or prohibitions concerning alterations, such as regulations of or prohibitions against fences. Some are more general.

If the declaration grants the board of directors or the architectural review committee the authority to approve certain exterior alterations, but do not specifically identify what types of alterations would be approved, or what types of materials may be used, the association must have some kind of objective guidelines in order to be able to uniformly apply the restriction. Section 720.3035 of the Florida Homeowners’ Association Act also discusses required guidelines concerning the location, size, type, or appearance of alterations which are to be approved by the association.

Assuming the board has the appropriate authority in the governing documents to adopt architectural guidelines or other rules affecting the use of the parcel, and further assuming the guidelines are properly adopted, such guidelines would generally be enforceable. Typically, 14 days’ notice must be given to each parcel owner prior to the board’s adoption. Specifying colors that an owner may paint their home, or the type of material they may use for installing a fence are relatively common.

Question:        I live in a condominium and have an interest in running in the next election to be on the board. What is the requirement to obtain “certification” required by the state? (V.R. via e-mail)

Answer:        The Florida Condominium Act states that within 90 days after being elected or appointed to the board, each newly elected or appointed director shall certify in writing to the secretary of the association that he or she has read the association’s declaration of condominium, articles of incorporation, bylaws, and policies.  The written certification must also confirm that the new director will work to uphold such documents and policies to the best of his or her ability; and that he or she will faithfully discharge his or her fiduciary responsibility to the association’s members.

Alternatively, the newly elected or appointed director may submit a certification of satisfactory completion of a board certification course administered by an education provider approved by the Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation that has been taken within one year before, or 90 days after, being elected or appointed.  The written certification or the educational certificate is valid for as long as the board member continuously serves on the board.  The association must maintain the certificates for five years after a director’s election or for the duration of the director’s uninterrupted tenure on the board, whichever is longer.

If a director fails to timely file the written certification or educational certificate, the director is suspended from service on the board until he or she complies. The board may temporarily fill the vacancy during the period of suspension.

Both the Florida Cooperative Act and the Florida Homeowners’ Association Act contain similar director certification requirements.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@bplegal.com. Past editions may be viewed at floridacondohoalawblog.com

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