Before we get started this week, a note regarding our ongoing discussion concerning whether a housing provider must accommodate a visiting emotional support animal. If you recall, we first opined that such accommodation was probably unnecessary, but we then received an opinion from an attorney with an advocacy organization, who stated that allowing “guest” emotional support animals is certainly required under the statute. So to split the tie, we asked the question of the Palm Beach County Office of Equal Opportunity—and we were told that the Fair Housing Act would not require an association to allow a guest to bring their emotional support animal onto the property, but that such a request might fall within the Americans With Disabilities Act, where it applies. Again, we think opinions differ because there is no clear answer to this unusual question.
Can a resident of a condo association record or videotape a meeting without the consent of the attendees? We have a resident that tries to do this, even when he has been asked not to by other owners. When told he is not allowed, he stalks out of the meeting and threatens to take legal action against us. In the past his behavior has been irregular. He gets in an attack mode verbally and physically. He has even told us to call the sheriff. What can we do? Signed, S.T.
The Condominium Act provides, in section 718.112(2)(c), that “a unit owner may tape record or videotape the meetings.” Your owner is entitled to record or videotape the meeting, whether or not the other owners consent.
Rule 61B-23.002 of the Florida Administrative Code does provide certain restrictions, however. The videotaping equipment cannot create distracting sound or lights; the board or owners may pass a rule stating that equipment must be put in place before the meeting begins, the board or owners may pass a rule that the person videotaping may not move around the meeting room while taping; and the board or owners may pass a rule requiring the board to be given advance notice of any owner desiring to tape the meeting.
I am the owner of a lot in a rather large homeowners’ association in Palm Beach Gardens. On June 1, 2011, the board revised and circulated the new rules and regulations for the association members. I took particular notice of the occupancy and use restriction section which states that four (4) dogs, not to exceed 80 pounds in weight at maturity, may be kept by each residential unit owner.
When originally written, the declaration of covenants, Article XI, Section 4, made no mention of the size of pets. However, in November 1980, Article XI, Section 4, was amended and was properly filed on the 19th day of November 1980. This amendment, the third amendment of which I have a copy, causes Article XI, Section 4, to be deleted in its entirety and substituted in lieu thereof a new XI, Section 4, Pets. This amendment clearly states that no pet in excess of 40 pounds shall be permitted.
I have written to the board but they refuse to answer. I have tried to convince them that they do not have the authority to ignore the declaration of covenants and make changes to the rules and regulations that are in conflict with the covenants. Signed. R.K.
In the past we’ve discussed the hierarchy of laws — the order in which various laws apply. The highest level is the federal government (statutes, treaties) and then state and municipal law. Below that is the declaration, then the articles of incorporation, the bylaws, and finally, at the bottom, the board-passed rules and regulations.
There is no question that a board cannot counter a specific restriction in the declaration by a board-passed rule. Only an amendment to the declaration would suffice. The board can, however, essentially invalidate the restriction in your declaration by failing to enforce the rule, thus creating a waiver defense for any violating owners. So, if the board is not willing to uphold the covenants in the declaration, and if the membership is unmotivated to replace the board with a group that is willing to do so, then your best and only option is to bring a legal action, as an owner, to either enforce the declaration against a violating owner, or to request a declaratory opinion that the declaration controls, and that the rule is invalid.