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Q
& A
Question:
I
am on the board of our HOA. Due to recent media coverage, we
are receiving inquiries on the duration of time that a
homeowner may leave Hurricane Shutters closed.
As some of our neighbors are seasonal, we have seen that
their shutters remain closed during the off-season, thus
mostly all summer.
At present, our covenants do not contain requirements for
shutter installation or removal outside of imminent storms.
What is the current
Florida
law on hurricane shutters remaining installed outside of
approaching storms, if any, and the ability for an HOA to
stipulate when they may be installed and when they must be
removed?
Also, is there any pending legislation to this effect?
A.K.,
Palm Beach
Gardens
Answer:
There
is currently no legislation governing hurricane shutters in
the Homeowner Association Act,
Florida
Statutes 720. The Condominium Act,
Florida
Statutes 718, has provisions, but nothing addresses
duration. There is currently no proposed legislation
that would address the duration issue.
Since
hurricane season starts June 1 and goes through November 30,
closed hurricane shutters are an issue for a large number of
associations that have part-time residents from the North.
The association can make reasonable rules and regulations to
address issues with the repair and maintenance of property,
if the declarations provide for an architectural review
board or committee to approve changes. Enforcement of
that rule is the tricky part because an association can only
engage in conduct authorized by the governing documents.
An association cannot fine an owner unless fines are
provided for in the declarations. If no fines are
provided for, the association would need to bring an action
in court for an injunction to force compliance, which is
expensive with no guarantee the injunction would be granted.
A judge will determine if the rule is reasonable, and most
likely will find it reasonable.
If
the declarations do provide for fines, then the procedures
outlined for notice and a hearing before a 3-member
committee must be adhered to before the committee can impose
a fine. A board of directors cannot impose fines.
Keep
in mind that any meeting in which changes to the rules
regulating parcel use are going to be discussed requires
notice be mailed to each owner at least 14 days in advance
with a statement describing the discussion and a sign must
be posted in the community at least 14 days in advance also
announcing the discussion.
My
suggestion is to find a creative way to solve the problem
without attorneys whenever possible. Once lawyers
become involved your community usually becomes embroiled in
turmoil because owners become defensive. Establish the
rule and then maybe a committee could contact the owners of
the seasonal residents to make sure they are aware of the
rule and ask them if they have anyone local who could
install and remove the shutters as storms approach.
I’ve found the best approach is not only identifying a
problem and providing a solution, but looking past the
solution to possible problems that will result from the
solution and have a plan to address those issues.
Barbara Billiot Stage, Esq.
Question:
The
management company of our HOA sent a letter to all
homeowners that a new law passed this year allows them to
implement new rules:
1.) If
owners are more than 90 days past due with any assessments
access cards to pool, clubhouse and gym will be
de-programmed. Entry to the community will be with key-pad
entry only.
2.)
If owners are more than 90 days past due with any
assessments the TV cable company will be instructed to
disconnect service.
3.)
If the home is rented, tenants will be notified of
these actions and the renter will be asked to make all
future rent payments to the association until all past dues
are current.
Can
they really do that?
K.B.,
Orlando
Answer:
1.)
The
suspension cannot be imposed against anyone who was not
given 14 days advanced notice and an opportunity for a
hearing. And.........even
if provided with notice and an opportunity for a hearing,
the person also needed to be provided written notice of the
suspension. Assuming
however that all notice requirements were met, the
association would have the right to deny access to the pool,
clubhouse and gym and only allow key pad entry.
2.)
The statute does not allow the association to
disconnect Cable TV.
3.)
The association can only demand that the tenant pay
the association the future assessments that the owner should
be paying the association each month.
The association cannot keep the rent, but only the
amount of the monthly assessment.
The overage goes to the landlord no matter how
delinquent the landlord may be in payments to the
association.
Eric Glazer
, Esq.
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