By Solutions Property Management of Florida, Inc. - Tuesday, November 3, 2020
Q: Is it necessary for the board of my condominium association to get a vote from the owners to change parking rules? They want to restrict me from parking my third vehicle on the property. I have been living here for over a year with three vehicles and no problem. (R.T., via e-mail)
A: The vast majority of governing documents grant the board the authority to make and amend and promulgate rules regarding the common elements. Board made rules cannot conflict with the declaration of condominium, nor rights which are inferable from the declaration. Further, board made rules must be “reasonable.”
Whether a particular rule is reasonable depends on the facts of each case. Some deference is given to the board’s business judgment and the board does not need to choose the least restrictive alternative when there are choices of approach. The development regulations for many condominiums only required 1.5 parking spaces per unit at the time the condominium was built. Obviously, in such case, every owner could not have 3 vehicles.
Q: Our development has 10 fountains in 7 ponds. The board reduced the operating time of the fountains from 12 to 6 hours a day. Owners of homes with a fountain view feel like the enjoyment and value of their homes has diminished. Is this a material change under Florida law that would require membership vote? (R.D., via e-mail)
A: The seminal case in Florida defines “material alterations” in the condominium context as those changes which “palpably or perceptively vary or change the form, shape, elements or specifications of a building from its original design or plan, or existing condition, in such a manner as to appreciably affect or influence its function, use, or appearance.”
The condominium law states that there shall be no material alterations or substantial additions to the common elements except as provided in the declaration of condominium. If the declaration is silent, seventy five percent of all unit owners must approve the change. Although not set forth in your question, it appears that your community may not be governed by the condominium statute, but rather Chapter 720 of the Florida Statutes, the Florida Homeowners’ Association Act. This statute does not have a “material alteration clause” and the case law under the statute suggests that the governing documents control the question.
Based on the situation you describe, the fountains will continue to operate in accordance with their general function, use, and appearance. Rather, the board is making a decision as to how these common elements or common areas will be operated. Most governing documents, as well as applicable case law, generally give the board relatively wide latitude regarding operation of common property.
Q: Our community has a building with 6 connected villas under a common roof. Homeowners are required to carry their own insurance and most have different insurers. If one company says that the building has hurricane roof damage, but the others disagree, would that insurer have to cover the entire roof for the 6 villas? (B.B., via e-mail)
A: That question could only be answered by having an attorney who is competent in insurance coverage issues review the applicable insurance policy. Without prejudging what might come from such a review, the short answer is “I doubt it.”
This is a common issue for this type of community. Over the years, I have seen situations where one villa owner may have inadequate insurance, or no insurance at all, and decides to “walk away” after a major loss, such as a hurricane. There are a number of approaches that could be considered to protect all of the owners, including requiring proof of insurance, requiring rebuilding/repair within a certain time frame, and setting forth effective enforcement remedies. This will usually require an amendment to the declaration of covenants.
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