Amending the Community’s Covenants

Amending the Community’s Covenants

By Ryan D. Poliakoff / Published May 2017

 

Q

uestion:

Our HOA board has solicited a vote of the membership to amend our covenants to add the following provision: “Meetings or gatherings of six or more people may not occur in a house more than one time in a 30-day period.” Additional ‘meetings’ would require board approval. The board said we need to pass this amendment to prevent a house in the community from being used as a sober home, but, it sounds like they want to dissuade lawful assembly. Would the above be legal?

Answer:

I can think of a number of problems with the proposed amendment. First, it is unlikely to be effective for its intended purpose. Courts have ruled that the rights of persons to live in group homes may be protected by the Fair Housing Act’s prohibition against discriminating against disabled persons. The fact that the rule or covenant is not expressly directed against group homes is not going to save it from the Fair Housing Act. Disabled persons are entitled to accommodations of housing provider covenants, and your “meeting” rule would be no different. So-called “sober” homes have become a significant concern in HOA communities throughout Florida, and I have seen a number of creative attempts to protect communities from them, but all of the options are currently speculative at best.

Second, I wonder if the covenant, as broadly as it is worded, would survive judicial review in the first place. It’s true that amendments to covenants are afforded a broad presumption of validity, and are rarely invalidated—but in this case, I agree with you that the covenant bumps up against not only your basic right to freely associate, but also conflicts with other easements that likely already exist in your covenants (such as the rights of owners to have guests, and to have their guests cross the common area roads). Further, your board has already strongly suggested that it intends to arbitrarily enforce the rule by offering owners an exception to the limitation with board approval. Obviously, this is intended to allow them to prohibit sober homes while offering owners exceptions so that they can maintain normal guest access. If the covenant isn’t invalidated outright as being arbitrary in its application, the actual arbitrary exceptions are going to create a selective enforcement defense that will prevent the HOA from enforcing the rule against sober homes.

Also, what about homes where six or more people are permanent residents? Why would that not be considered a meeting that would violate the rule? I suspect that you are paraphrasing the rule a bit, but if it’s as simple as you’ve made it out to be, I don’t see it having very much effect. Your owners should also consider whether the fear of sober homes is worth approving a very significant restriction on the rights of all owners to have guests visit their home.

Question:

We were planning on remodeling our kitchen in our condominium unit in March. However, we were told by the condominium president that this work can’t be done in season. Unfortunately, all my condominium documents, including the bylaws, are in my house up north. I have borrowed documents from someone in the building, and I can’t find anything in them regarding when you can do improvements to your unit. The only thing I found is the hours work can be done.

I have addressed this with the president of the association, and he said his bylaws are in his home up north, but he insisted that you can’t do work in season. He suggested that I do the work in the summer or fall. But, I only spend about four months here, and I do not come back in the summer or fall. I want to be respectful of condominium rules, and if this is indeed a rule, I just want to see a copy. I’ve asked a few of the condominium owners, and no one seems to have a copy of this rule.

Answer:

The president and others have referred to this rule as being part of the bylaws, but that is unlikely. Bylaws usually deal with corporate governance, whereas a rule restricting the use of your unit is more likely to be found in the declaration of covenants, or in the rules and regulations passed by the board of directors. Either way, though, I do think a covenant or rule restricting when you can remodel your unit is likely to be enforceable (covenants are afforded a broad presumption of validity, whereas board-made rules must pass a reasonableness test). These rules are fairly common in condominiums populated by snowbirds, particularly because people only spend a few months in their units, and they want to be free of construction noise during their vacations.

As for seeing a copy of the rule, every condominium in Florida, even smaller ones, are required to maintain certain official records, including a copy of the governing documents. If you make a written request to see these documents, the board is obligated to allow you to inspect them within ten business days. If they do not, you can file a complaint with the Division of Condominiums, which has the authority to order the association to provide the records, and to award you up to $500 in damages.

Ryan D. Poliakoff

Partner of Backer Aboud Poliakoff & Foelster

Ryan D. Poliakoff is a Partner of Backer Aboud Poliakoff & Foelster and serves as general counsel to condominiums, homeowners associations, and country clubs throughout South Florida. He is the co-author of New Neighborhoods—The Consumer’s Guide to Condominium, Co-Op, and HOA Living. In addition to representing associations, he is a frequent contributor at seminars and workshops for attorneys and board members, and he has written hundreds of articles for magazines and newspapers throughout the United States. He can be reached at email hidden; JavaScript is required. For more information about his firm, visit www.bapflaw.com.