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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.  Iíve 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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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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