- Ryan D. Poliakoff Special to The Palm Beach Post
Question: I am an original condo owner (46 years) in our building. I am originally from New York. In the past six years, we have become Florida residents, spending six months per year in Florida. Our community needs a lot of work, and last year I invited several neighbors to my home to talk about what we could do to improve the look of the community and the grounds. The board made us formally organize a landscaping committee, keep minutes, etc., and we were required to name two co-chairs. Everyone wanted me to serve as a co-chair. The president forcefully said it was against condo laws to have a six-month resident serve as co-chair of a committee. Was she correct? — B.J.
Answer: Put simply, there is no such restriction in the Condominium Act, and it is highly unlikely that your governing documents put any limitations on the ability of a unit owner, regardless of residency, to be the chairperson of a committee. It is more likely that the president was misinformed, or simply did not want you serving as one of the chairs and used your residency as pretext.
Q: Our HOA just amended its covenants to say that an owner cannot advertise their home for rent online or in any public forum. Can they do this? Doesn’t this make it impossible to rent out a property to the public? — H.M.
A: I haven’t encountered such a restrictive covenant in my own clients’ documents, but my gut reaction is that this is probably legal and enforceable. Restrictions found in a declaration of covenants are generally enforceable. They are afforded a broad presumption of validity, and they are only unenforceable if they are contrary to public policy, abridge a fundamental right or are arbitrary in their application. The issue you raise involves free speech — the ability of a property owner to communicate their property to the public. While a handful of states have limited the ability of a community association to abridge speech, Florida generally has not.
For example, courts in Florida have upheld community restrictions on signs, and those are clearly speech restrictions. Now, the restriction you raise also touches upon the alienability of property (the ability to sell your lot), and courts have been more restrictive with respect to covenants affecting sales. But, this covenant does not prevent you from selling your lot, it only controls how you may advertise that sale, and so my gut feeling is that, if you were to challenge the covenant in court, it would likely be upheld.
Q: I have rented in the same 55-plus mobile home community for 14 years. In 2006, the management company did a criminal history search. Once that they saw that my background was clear, the local manager gave me the report, saying that they did not want it in their possession, given that anyone might have access to the information.
The co-op board is now requiring all renters to have a background check conducted each year. I can understand that a lot could happen in a year. My concern is that, once they see the information, they keep the report. I do not know how or where the report is secured or who may have access to all the information that is in it. Should I be concerned? Do I have any recourse other than not to rent in the park? — D.K.
A: The Cooperative Act, like the Condominium and HOA acts, provides that information obtained in conjunction with the approval of a rental or sale is not an inspectable record and may not be accessed by owners at large. Nonetheless, some risk exists that your background check might be accidentally seen by another owner. This is a general risk associated with living in any community that requires background checks, whether governed by a community association, or just a privately owned rental property. Hopefully the board management office understands the law and will not allow anyone to review your background check.