Community Update

Can You Have Rules Dealing With Children?

By: Michael O. Dermody

In 1988, Congress added “familial status” – defined as including those family groups with children under 18 – to the list of protected groups under the Fair Housing Act. Since that time, condominium and homeowner associations have been discovering that their various rules regulating or prohibiting the use of the association’s facilities by those under 18 years of age may be prohibited by federal law. Rules once considered common and reasonable in the early 1980s, that is, rules which employ a specific age to regulate minor residents’ use of the pool, gym, or other areas, could, after the passage of this federal law, result in legal action against the association on behalf of owners with children under 18.

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Tree Maintenance and the Potential Impact of Section 163.045, Florida Statutes

By: Sara K. Wilson, Esq.

In general, a community association is responsible for operating and maintaining the common areas of the community (in the case of homeowners’ associations), and the common elements (in the case of condominium associations). If there are trees located on these common areas/elements, the association’s maintenance duties will include trimming and even the removal of trees that may be dead or dying. Before performing any significant trimming or removal of trees, however, an association must determine whether any prior governmental approval is required.

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More on the Installation of Security Cameras

By: Elizabeth A. Lanham-Patrie, Esq.

The installation of a security camera on condominium common elements is considered a material alteration or substantial addition to the common elements.

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Heron at Destin West Beach & Bay Resort Condominium Association, Inc v. Osprey at Destin West Beach and Bay Resort Condominium Association, Inc.

94 So.3d 623 (Fla. 1st DCA 2012)

By: Jay Roberts, Esq.

Hierarchy amongst documents which govern a community association is at the heart of THIS CASE.  The primary dispute which ignited this litigation concerned how the president would be chosen for the master association board of directors.  The master association board of directors is comprised of the five presidents of five sub-condominium associations.  One faction on the master association board of directors contended that the president of the master association board of directors should be chosen by a simple vote of the directors (i.e., each director only has one vote).  The other faction contended that each director should be given a weighted vote equal to the amount of condominium units contained in their respective condominium.  The trial court ruled in favor of the one director / one vote faction, and this appeal followed.

On appeal, the First District Court of Appeals analyzed the language of the master declaration of restrictive covenants and easements (“Master Declaration”), the articles of incorporation for the master association, and the bylaws for the master association. The Court recognized that when trying to interpret all three documents together leads to a reasonable argument that there is a conflict between the Master Declaration and the articles of incorporation and bylaws. However, the Court states:

Regardless, there exists a certain hierarchy in the governing documents. For both types of associations, the declaration acts as the association’s constitution and strictly governs the relationships among the members and the association. A member, whether a unit owner or another association, may sue the association for violating duties established in the relevant declaration.

The articles of incorporation are governing documents which are generally filed with the Secretary of State as part of the process to form a corporation. Bylaws are rules adopted by an organization for its internal governance; however, these rules are subordinate to the Articles of Incorporation or the organization’s constitution.

Based on the foregoing, if a conflict arises between these three governing documents, the Master Declaration should control over the Articles of Incorporation or the Bylaws.

The Court determined that the Master Declaration clearly evidenced an intent that all votes regarding the master association should be decided in accordance with a weighed voting scheme wherein the president of the sub-condominium association casts votes equal to the amount of condominium units contained within their respective condominium. This includes the vote on the master board of directors to determine the president of the master association. Accordingly, the Court reversed the trial court’s holding.

So why does THIS CASE matter? Courts always strive to interpret governing documents in harmony with each other.  However, that is not always possible. If there is ever a conflict between a declaration (whether that be a declaration of covenants or a declaration of condominium) and the articles of incorporation or bylaws of an association, the declaration will control the conflict. If there is ever a conflict between the articles of incorporation and the bylaws of an association, the articles of incorporation will control the conflict. As mentioned, courts try to avoid conflicts if possible. Accordingly, it is important that you have the association’s attorney opine regarding any perceived potential conflict in your community’s governing documents.

FCAP Managers Report

Karyan San Martano, Esq.

The previous boards failed to enforce the parking restrictions in the community, and now parking has become a nightmare. The new board would like to remedy the solution, but can the board begin to enforce a restriction that has not been enforced in the past?

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