Live in a home governed by a condominium, co-op orhomeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Our HOA community website indicates that we are a gated community. Therefore, real estate agents who represent home sellers indicate in their promotional materials that we are gated and nothing else. Our board however says that we are both a gated community as well as a controlled access community. Can you be both, and what is the difference; and does one take priority over the other?
Specifically, we have instructed our contracted security guard gates to vet all pedestrians and cyclists that come into our property. However, that is rarely
done even in the middle of the night when there are hardly any guest cars coming in. What would be the liability if one of them commits a nefarious act against property or person? What would be the expectations of a potential home buyer and those who have already purchased a home if they only became aware of the fact that we are a gated community? Signed, A.G.
Dear A.G.,
The things you are talking about are no more than marketing terms — puffery, essentially. There’s no official meaning to the terms “gated” or “access controlled.”
For example, while I live in what would traditionally be called both a gated and access-controlled community, there’s no actual gate anywhere — just arms that block cars from driving in and out without permission. But I know of other communities that have actual physical gates that open and close between each car. Some of them have guards, and some of them just have a code box where you can either scan a QR code or call a resident so that they can let you in.
Are those communities really gated, where mine is not? And if there’s no guard, but there is a code required to enter the gate, isn’t that a form of “access control” as well? These terms don’t mean anything official. They’re used to sell homes.
I would generally say that “gated” refers to any system that prevents cars from driving in unimpeded (from gate arms to actual physical gates); and “access control” refers to a multitude of systems by which access to the community can be limited, whether there is a physical barrier, or not; including on-duty guards, code boxes, virtual guards, remote guards speaking through video conference systems, etc. But others might disagree. I am sure some people would call what I have “access control” and not “gated”— after all, there is in fact no gate.
In my mind, your community is properly described as both gated and access controlled. And I don’t think that means much at all. It neither means that the community is guaranteeing security or ensuring that no one unwanted will ever sneak into the community, nor that a crime will never occur.
All gates and guards do is help monitor and control access and discourage crime — but it does not prevent it entirely.
Now, the actions of your association will always be judged on a reasonableness standard, and so I can make up an outlandish scenario where your access control is so deficient that the association could theoretically be held liable for a crime (a person drives up to the gate, brandishes a gun, tells the guard that they’re here to shoot a resident, and the guard lets them in without informing the resident). But overall, the risk to the association is low, and I think far outweighed by the benefit of having access control in the first place.
Question: I have rented my condominium since 2009 to the same tenant. We completed all the necessary forms and received all the approvals in 2009.
The HOA board recently approved new rules that require my tenant to pay a fee and get a background check before renewal each year. I am puzzled about the need to do a background check on a tenant who has lived there for almost 18 years with no problems. Is this something that is now common? Signed, D.A.
Dear D.A.,
The first question is whether your board has the right to require an annual renewal application in the first place. That likely comes down to language in the declaration of condominium. Depending on how that section is worded, the board might not, by rule alone, be empowered to require lease renewals to be approved (rather than simply the original lease).
For those communities that do require renewals to be approved, it would be typical to have the tenant go through the entire process again, including the background check. The primary role of a background check is to ferret out financial concerns (which are much more of an issue for yourself than the condominium) and to prevent dangerous criminals from living in the community.
While you’ve had a great tenant for many years, the association can’t make exceptions — and you’d be quite surprised to find what people can get up to, even with no history of bad behavior.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Is HOA on hook if gated community doesn't actually deliver security?
