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Article
Courtesy of The Sun Sentinel
By Joe
Kollin
Published September 5, 2007
`Residents
of condo and homeowner association communities who want the right to park
pickups in their driveways shouldn't look to a recent appeal court
decision for relief, legal experts say. That ruling applies only to
cities.
The Third District Court of Appeal in Miami ruled 2-1 that the city of
Coral Gables can't enforce the "unconstitutional" code that for
years prevented residents from parking pickups in their driveways
overnight.
In the ruling, Senior Judge Alan R. Schwartz called it
"frightening" for a government to make something illegal because
some people don't like the way something looks.
"Our
nation and way of life are based on a treasured diversity, but Coral
Gables punishes it," he said.
Yet, condo and homeowner associations demand conformity, whether the color
of the house or style of the mailbox.
Gary Poliakoff, who heads the Becker & Poliakoff law firm, said courts
have long held that associations can enforce private deed restrictions. He
explained that deed restrictions "don't get the same constitutional
protection" as a city's police power. In other words, since you can't
be put in jail, the Constitution doesn't apply.
The Coral Gables case involved Lowell Kuvin, who rented a house without a
garage and had to park his 1993 Ford F-150 pickup in his driveway.
Schwartz blasted Coral Gables because it required Kuvin to choose between
staying or leaving the city simply because he had a truck.
And while association communities can enforce similar rules, change can
happen.
"A pickup truck was an eyesore when documents were written 20 or 30
years ago. People thought they brought down property values, but we know
that isn't the case any more. Some pickups are more expensive than
cars," said Kenneth S. Direktor, who supervises the Becker-Poliakoff
division that represents associations.
Not all owners want it changed.
"We are an expensive community with $400,000 to $800,000 homes and
our bylaws say no pickups. I think they cheapen the value of a
house," said Stan Gross, of the Woodmont Country Club homeowner
association in Tamarac.
Despite the rule, his association won't enforce it because directors say
they don't believe it is enforceable, he said.
Judge Leslie B. Rothenberg, who dissented in the Coral Gables case, said
the truck's owner was "on notice regarding the city's regulations
when he chose to rent at a location with no garage to park his truck at
night."
He had "fair notice of the prohibited conduct" but chose to rent
anyway, she said.
In other words, he knew the rules going in, just like owners in condo and
homeowner association communities.
Q&A
Q. Longtime directors of condo and homeowner
associations ask what will happen when they are forced to quit and other
owners refuse to take over. In many associations, directors stay on the
job because no one will step forward to care for the community. What
happens if an association can't get enough directors to make decisions?
A. "If the association is unable to fill a sufficient number
of vacancies on the board to constitute a quorum, Florida statutes provide
a procedure by which any unit owner can petition the circuit court for the
appointment of a receiver to manage the association's affairs," said
Lindsay E. Raphael, an associate with the Fort Lauderdale-based Tripp
Scott law firm.
Q.
Where can I go with my complaint? Where can I or get more information?
A. Here are some contacts:
State condo ombudsman: [email protected]
; 954-202-3234;
850-922-7671 (not toll free); www.myflorida.com/condos
. The ombudsman's
office answers questions for unit owners, tries to mediate disputes
between owners and boards, monitors elections and educates owners.
Division of Florida Land Sales, Condominiums & Mobile Homes:
954-202-3982; 800-226-9101; www.state.fl.us/dbpr/lsc/condominiums/index.shtml
.
The division enforces state condo law.
State condo law: www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0718/ch0718.htm
State homeowner association law: www.flsenate.gov/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0720/ch0720.htm
Cyber Citizens for Justice, a nonprofit representing Florida condo and
homeowner association unit owners: www.ccfj.net
.
Community Associations Leadership Lobby, an organization that represents
boards and those who manage and advise associations: www.callbp.com
.
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