Community Update

Does Your Association Allow You to Use the Clubhouse for Political Events?

By: Marty Platts

Florida Statutes allow the Condominium unit owners to use the common elements for the purposes for which the common elements were intended as long as their “use does not hinder or encroach upon the lawful rights of other unit owners.” The statute also permits the Board of Directors to create and adopt reasonable rules pertaining to the use of the common elements. If your community has such facilities, the Board (assuming it has rule making authority) should create guidelines addressing the proper private use of the facilities. 

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New Laws Regarding Emotional Support Animals

By: Howard J. Perl

Nothing evokes more of an “emotional” response than the issue of emotional support animals in a no-pet community. While this is not a new issue, and has been discussed many times in this forum and others, Florida laws affect how a community handles a request for a reasonable accommodation to its governing documents, rules and regulations or policies to allow a resident to maintain an emotional support animal in a no-pet community. 

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Borrowing Money

By: Mark D. Friedman

We have been receiving a number of loan requests. Even though we’ve done articles in this forum regarding association borrowing in the past, there are some issues that keep reoccurring. Do not start the borrowing process without a discussion with your attorney.

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Beachwood Villas Condominium v. Poor
448 So. 2d 1143 (Fla. 4th DCA)

By: Jay Roberts, Esq.

Since the earliest days of condominium associations, questions have arisen over the extent of the condominium association’s authority to impose restrictions on the use of the condominium property. The courts have long recognized that there are two types of restrictions, those contained in the declaration of condominium and the rules adopted by the board of directors. Restrictions contained in the declaration of condominium are “clothed with a very strong presumption of validity” and can be unreasonable so long as they are not wholly arbitrary in in their application, in violation of public policy, or that they abrogate some fundamental constitutional right. White Egret Condominium, Inc. v. Franklin, 379 So.2d 346 (Fla.1979). However, board-adopted rules are subject to greater scrutiny by the courts.

In reviewing the enforceability of board made rules, the Fourth District Court of Appeals, in Beachwood Villas Condominium v. Poor, 448 So.2d 1143 (Fla. 4th DCA 1984), articulated the test to be used in determining whether a Board-made Rule is enforceable. The Beachwoods Villas case involved a challenge to the enforceability of two board-adopted rules which regulated the rental of units and the occupancy of units by guests, respectively. The trial court found that the board lacked the authority to adopt either rule. On appeal, the Fourth District reversed, and in doing so announced the test to be used in determining if board adopted rules are valid and enforceable.

In considering the validity of the rules adopted by the association, the Fourth District held that the Board had rule making authority in the condominium documents; and the rules did not contravene any right granted by, or reasonably inferable from, the declaration. Therefore, the court held that the rules were valid. The court also noted that rules can be found to be invalid when they are unreasonable or arbitrary. However, as these issues were not raised before the trial court, it was not an issue reviewed on appeal.

So why does THIS CASE matter? This case matters because it announces the legal test used to determine if a board-adopted rule is valid and this is the test that is still used today.

The test announced by the Beachwood Villas Court is as follows:

1. The board of directors must be granted rule-making authority in the condominium documents; and
2. The rule cannot conflict with any right contained within the condominium documents, nor any right which is “inferable” there from; and
3. The rule must be “reasonable” and not discriminatory.

While not discussed by the Beachwood Villas Court, a “fourth” test which needs to be considered in connection with any board-made rule is that it be adopted in a procedurally correct manner. Subject to stricter requirements in your governing documents, rules regarding the use of the common elements or limited common elements can be approved at a board meeting with 48 hours’ notice. The notice of a board meeting where rules regarding unit use (in a condominium) or parcel use (in an homeowners’ association) are to be consisted must be posted and mailed, delivered, or electronically transmitted to each owner at least 14 days before the meeting. Always check your documents to ensure that unit owner approval is not required.