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: My HOA recently sent out some proposed revisions to our existing documents for member approval. First, they changed the approval percentage from 75% to 66 2/3%. The change will still need to be approved by 75%, but future changes will only need 66 2/3%. We only have 59 homes. Is this legal?
Also, the documents currently have a section called “nuisances.” They have added the following sentence at the end, stating that a nuisance “includes but is not limited to actions, spoken words, written statements/emails by members to the board of directors
and/or the management company, as well as at the association board meeting and annual meetings of the membership.” My opinion is that this violates the First Amendment of the Constitution and would not be legal. Am I correct? Signed, C.S.
Dear C.S.,
First, it is legal to amend the governing documents to change the percentage required for future amendments. In fact, this kind of change is common. You are correct that the amendment will require whatever approval is currently stated in the declaration, but future amendments will be made using the new percentages. Changing from 75% to 66 2/3% is not even that aggressive — it’s more popular to use a percentage of a quorum, which could ultimately result in approval by a far lower number of owners (of course, that would depend on how many people show up to vote).
As for the new nuisance language, remember that the First Amendment regulates the government. Your HOA, at least pursuant to Florida law, is not a government. And private parties are allowed to regulate speech — that’s what non-disclosure agreements are, among other things.
We know that courts have upheld signage restrictions, and displaying a sign is a type of speech. Here, I think the biggest problem with the language that you shared is that it could be found to be arbitrary in its application. The nuisance section refers to noxious, annoying or offensive activity, but what kinds of speech would satisfy that standard? Does the board get to unilaterally decide if someone’s words are annoying?
A nuisance, under general common law principles, must be pervasive and continuous, not simply one-off annoyances. While your covenants are not required to abide by the common law definition of nuisance, I do wonder how a court is ultimately going to look at this type of provision.
With that being said, this new language would at least allow the association to apply fines or suspensions to perceived violators; and that’s going to put the onus on those violators to bring a legal challenge, which is fraught with risk. Frankly, I would be a bit surprised if the community supports this kind of amendment — I find that most unit owners are reasonably suspicious of language like this, as they know it would be easy to use against them at the whim of a future board.
Question: You recently answered a question that I had sent and stated that you believed that, since the second notice of our election did not include the required statutory language, that the election would have to be done over. Based on this, we filed an election complaint with the Department of Business and Professional Regulation, which claims to have investigated the complaint and says that it is now with the “Legal Department.”
We are now approaching the next election, yet the agency has taken no action. We just thought you should know that most condo owners view that government agency as a toothless tiger. Signed, D.R.
Dear D.R.,
I am sympathetic to the problems that you are experiencing, but I am reticent to blame the Division of Condominiums (the branch within the department that oversees associations). I don’t think that they are disinterested in resolving these disputes or are actively ignoring you. Instead, and from what I gather from talking to division employees over the years, they are severely underfunded and understaffed for the job that they are tasked to accomplish. They don’t have the resources for the sheer scope of the massive job of regulating Florida’s condos and HOAs.
We know that Florida’s government has been cutting most spending, not increasing it; and the legislature would need to make this a specific priority if the division were going to be expanded in a meaningful manner. But I’m not aware that condos and HOAs are anyone’s priority.
Also, in the past few years the division has changed how it handles complaints, generally. Years ago, investigators often rejected complaints when they were not reasonably based on the law or were clearly frivolous — but my understanding is that now, the investigators only compile information, regardless of the type of complaint; and then they send the matter to the legal department to either dismiss the complaint or take appropriate action. As a result the legal department must be dealing with a lot of entirely meritless issues — I have had to respond to complaints on behalf of clients that claimed violations of laws that simply didn’t exist; but I was told by the examiner that I was still obligated to respond, and that they were still obligated to send it to legal. Arbitration would be far quicker, but of course that carries a lot of risk for owners, as well.
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: HOA wants to classify your words as a nuisance. Is it legal?
