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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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