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OUR ATTORNEYS:

Barry Silver, Esq.

Boca Raton

(561) 483-6900

barryboca@aol.com 

Barbara Billiot Stage, Esq.
Orlando, FL

(407) 926-0263

barbara.billiot.stage@stagelaw.com

Eric M. Glazer, Esq.

Glazer &Associates P.A.

Hollywood, FL

(954) 983-1112

Eric@condo-laws.com 

Q & A

Question:

I want to screen the front of my house, since when the weather is nice I can open the doors and let the air in and because my wife, who has no thyroid, is always cold, so shutting the AC will enable her to feel a nice breeze in the house without having to be bundled up all day and wearing a sweater or long sleeves.  Not having a thyroid messes up your body temperature and metabolism and being able to have natural breeze moving through the house is much easier than having AC on all day, plus it saves a little on the electric bill and helps the greening of our country.

We had originally requested a storm screen door and got approved.  But, the way our front door is designed we would have to alter the frame and build it out all over again, at a very high cost and having to reapply for alteration to the front of the house.

We then applied for the screen enclosure, which the ARB approved.  However, the Liaison BOD member for the ARB pulled out our application and put it forth at the next BOD where it was discussed by the BOD. The general consensus of the BOD (4 out of 5 members) was that our screen enclosure would constitute a “wall” or a “fence”; therefore, it would not be allowed.

Our CC&Rs only address screen enclosures around pools and the original Architectural Planning Criteria submitted does not address this.  Then in 2006 they updated said APCs to state that no front screen enclosures were permitted.  This happened after they forced one homeowner to remove the screen in the front of his house and another homeowner had put one in, but nothing was done about it and it was grandfathered in.  There are two homes that had them approved in 2003 (when the developer was still in control).  Certain BOD members were adamant about not allowing them because they did not like them and “made the homes look like trailer park trash” (their comments). 

Do I have a legal recourse or what are my rights regarding the screens?  If they allow homeowners to screen in a rear lanai, and they don't consider it a wall there, why is it considered a wall/fence for the front?  The answer was that the 2006 revised APCs specifically say no front enclosures and it is something used to keep someone/something out; therefore, that is the purpose of a wall.

With the new revisions to Florida Statutes 720, can they deny my screen based on what they interpret the APCs to say and that the previous ones approved by the developer are grandfathered in and they can change the APCs to say so? 

Here is a photo of the exact same home in our community across from me with screened in front.  It's even the same elevation.

 

Answer:

Generally, the declaration of covenants (or commonly known as the restrictive covenants) of a homeowners' association provides that the Architectural Review Board ("ARB") is a committee appointed by the Board of Directors ("BOD"). The purpose of the ARB is to review, maintain, and create guidelines and rules for improvements and maintenance to the properties located within the association for the purpose of ensuring the homes within the community maintain a certain aesthetic appeal. The ARB and their actions, like any other committee created by the BOD, are subject to the supervision, approval and consent of the BOD. Therefore, the BOD has the right to approve or disapprove any action taken by a committee as long as such approval or disapproval does not violate the restrictive covenants or other published guidelines, rules and standards.

The covenants generally contain a provision that outlines the initial rules for maintenance and improvements for homes and a provision for amending the rules. They may also refer to a separate document, often referred to as ARB Guidelines or Planning Criteria and the procedures for maintaining and amending these as well. Trends and technology in home improvement and maintenance change over time and the covenants, if properly drafted, will provide the BOD and ARB with a protocol to follow if the majority of homeowners in a community wish to adapt these changes.

Often the covenants also contain very broad provisions and language that reserve to the BOD or the ARB the right to approve and deny an ARB application at their discretion. This provision allows the BOD or ARB to make a decision when presented with a new or unusual request. The covenants usually contain a provision as well that provides that the approval of a waiver or variance for one property does not create an obligation to reach the same decision regarding similar requests in the future. Absent such a provision in the covenants, it would be up to the discretion of a court to decide the matter based upon such facts as the number of similar requests received and the number of similar requests approved.

Your HOA allowed two homes to be enclosed with screens in the front in 2003, before amending their APCs in 2006. This establishes intent by the BOD or ARB to prevent these enclosures in the future. The BOD is not under any obligation to approve your request and did have the right to override the initial approval by the ARB.

There are two things you might try at this point. One option is to try to have the rule prohibiting front enclosures reversed. Depending on your covenants, this might require that you obtain the vote of 2/3s of the homeowners. This will be difficult to accomplish if the 2006 amendment required a 2/3s vote to create the ban. Your other option is to appeal to the board for a variance based on medical necessity. Whether or not you would be successful or if the BOD is even obligated to consider such a request is a question for an attorney who specializes in disability cases. The BOD will most likely, if they consider the request, investigate whether or not the same air flow can be created by opening windows and whether or not a standard screen door can be installed or if your front door requires a custom-manufactured screen door.

Barbara Billiot Stage, Esq.


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Disclaimer: The content of this column can not be considered legal advice.

This column is not a substitute for consultation with legal counsel. 

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