- Ryan D. Poliakoff Special to The Palm Beach Post
Question: We live in an over-55 condominium community. There is a woman in her 30s who inherited her condo unit from her father. The problem is that this woman is constantly causing disturbances with late-night parties and friends going in and out of her unit all hours of the day and night.
The other owners in the building have filed numerous noise complaints with the condo board. One board member said that they cannot evict her since she is an owner.
What can be done to legally evict this woman who should not be in a senior condo development in the first place? — R.Z.
Answer: While you say you live in an over-55 condominium community, note that there are many different types of housing for older persons communities. In order to qualify as housing for older persons, the Fair Housing Act provides that at least 80 percent of the homes must be occupied by at least one person 55 or over. Condominium and HOA documents can be more restrictive than this, but many are not. It could be that your governing documents simply mirror the FHA and that this woman’s unit is one of the 20 percent of homes occupied by a person under 55. Or, it could be that your covenants are far more restrictive, and that she is in fact not allowed to live in the community. There would be no way to know without reviewing your declaration of condominium (or whatever documents contain the over-55 guidelines).
If her living in the community violates your covenants, the association would be able to get a judge to order her to vacate her unit (essentially, an order to comply with the documents). But, if she is allowed to live there, you could not evict her for being loud and young. Instead, you would have to enforce your rules and regulations governing noise and other nuisances through fines, suspension of use rights and arbitration or litigation, if needed.
Q: I live in a gated community that is governed by an HOA. The community is approaching 18 years of age and, during Hurricane Irma, several roofs were damaged (including my own). All of the original roofs in the community are the same color – medium brown. There have been very few replacement roofs in recent years, and they are similar to the original color. I will be replacing my roof within the next few months and I would like to change to a medium gray color, since my house is now dark gray. I have read our covenants and they include language governing the type and style of roofs, but they do not expressly specify the color. They do state that the architectural control committee must approve the type, color and style of all roofing materials.
Recently the HOA board sent an email to all residents noting that the shingles on all replacement roofs must match as closely as possible to the original shingle color. It is my opinion that the board is overstepping its authority when it is limiting the color of the roofs to match the original color. When the community was built, almost all of the homes were painted cream to light brown. Over the years, the color diversity has expanded greatly. If the home colors can (and did) change, the roof colors should be allowed to change as well. — J.P.
A: While I appreciate your argument, I would rather be on the association’s side if this issue were ever litigated.
The HOA Act, at Section 720.3035, Fla. Stat., provides that, if the declaration of covenants or other published guidelines and standards authorized by the declaration of covenants provide options for the use of materials, those express options may not be restricted. But, conversely, where the governing documents do give a board or architectural control committee the power to review and approve plans and specifications and to enforce standards for exterior appearance, and when those standards have been published to the owners, those standards are enforceable.
You have only sent one section out of your declaration of covenants, but it does expressly say that the architectural control committee must approve the color of roof materials. I also think it’s likely that your governing documents separately provide that either the ACC or the board of directors may create architectural standards. Further, the board did, in fact, provide residents with notice that the standard in the community is that all roofs must match the original construction. While I do not have information regarding the manner in which the board or the ACC promulgated these guidelines, it is likely that your board has the power to specify that roofs must remain in their original color.