Florida Law: Michael J. Gelfand, Esq.
What Is It? Garage or Storage Building? That Is The Question!
What happens when an owner starts to construct a building on his or her property, which appears in violation of the association's restrictions? If the terms used in the restrictions are not clearly defined, it may not be easy to prohibit that construction, or construction of other structures outside a home. How would your association approach construction of a similar structure in your community?
In a decision that has implications beyond structures and can affect both Florida condominium and homeowners' associations, a Florida appellate court recently addressed whether a structure not connected to a house, which the owner described as a "garage" in an application to approve the construction, but which the owner also referred to as a "storage building," was prohibited by a homeowners association restriction that prohibited "utility buildings, sheds, or outbuildings."
In Heleski v. Harrell, 2D12-4136 (Fla. 2nd DCA, August 30, 2013), the court determined that it was unclear as to how the owners intended to use the structure and thus, uncertain if the association could require the structure's removal. The decision indicates that the Heleskis started to build a structure measuring 24 feet by 24 feet on their property without first obtaining approval of the homeowners association. The structure was not attached to the main house.
Two neighbors of the Heleskis complained to their association that the structure violated the association's declaration of restrictions. After the association approved the project, the two neighbors filed a lawsuit to stop the construction of the structure apparently because if it was a garage, it was not connected to the house, and if it was not a garage then it was prohibited.
The trial court found that the Heleskis were prohibited from building the structure and granted judgment for the neighbors. The trial court found that the structure was a garage because the Heleskis repeatedly referred to it as a "garage" in their building application.
The Florida appellate court reversed the decision of the trial court, focusing on the exact language used in the association's restrictions. Declaration Section 3, which applies to garages, stated:
GARAGES. Each single-family dwelling shall have a private garage, capable of housing at least two (2) cars, together with a concrete driveway or such other driveway as is approved by the Developer, extending from the garage to the front line. All garages shall contain automatic electric door openers which shall be maintained in good operating condition. Each garage shall be attached to the dwelling and shall conform architecturally to the design of the dwelling. Unless otherwise approved by the Developer, the door opening of each garage shall not face any street.
Declaration Section 9, which applies to utility buildings, stated:
UTILITY BUILDINGS. No utility building, sheds or outbuildings shall be erected, placed or permitted to remain on any lot without the prior written consent of the Developer.
As the appellate court noted, the restrictions never defined the words "garage" nor "utility building." The appellate court concluded that although the Heleskis referred to the structure as "garage" those statements do not conclusively establish that it was a "garage." The record was unclear as to how the Heleskis intended to use the structure.
Of import to many associations, the label used by the owner to describe what the owner was doing was not dispositive. This is so in this case even though the structure's location indicated that the building could not be used for parking vehicles. The appellate court noted that restrictions are to be interpreted in favor of free use of property and that the restrictions did not define what is a garage or utility building. Therefore, the court sent the case back to the trial court to determine the intent of the owner concerning use of the building.
Of additional import to associations of all types, this decision shows the problem often faced by drafters. An association may have a restriction based on an old perception of use, rather than appearance. However, if appearance is the issue, than the restriction should be redrafted to meet appearance issues directly.
Especially as conditions within a community may change over time and the meaning of words evolve, restrictions may have to be updated over time. Note that usually a quick board adopted rule is not sufficient. If you have drafting or interpretation issues, consult with your counsel.
Who Is A Member Of A "Master" Association?
Many Florida communities consist of a "master association" and many separate, independent "sub-associations." If an owner pays assessments only to the sub-association, is the owner a member of the master association? This question is now answered.
A Florida appellate court recently ruled that an owner who sued a Florida master association was a "member" of the master association because he was obligated to pay assessments to the master association. In Rosenberg v. Metrowest Master Association, Inc., 38 Fla. L. Weekly D 1476 (Fla. 5th DCA, July 5, 2013), an owner sued a master association alleging the master association failed to comply with Florida Statutes governing the transition of control of homeowners associations from developers to association members. The trial court found in favor of the master association and awarded attorney's fees to the master association.
The Florida appellate court agreed with the decision of the trial court. The appellate court found that the owner was a "member" of the master association because he is obligated by the master association to pay assessments. The fact that the owner actually tenders payment of assessments only to his community association did not matter because he was ultimately obligated to pay assessments to the master sub-association.
Though this decision was based on the Homeowners Association Act, the same conclusion would likely apply if the sub-association was a Florida condominium association though based on different statutes.
Mandatory Florida Homeowners Association Registration
Pursuant to Chapter 2013 218, §2 Fla. Laws, every association governed by the Florida Homeowners Association Act is required to register with the State of Florida by November 22, 2013.
Last month, immediately after the State unveiled its registration system, Gelfand & Arpe provided e-mail subscribers detailed access and registration instructions. The Internet site is located at www.myfloridalicense.com/dbpr/hoa. Note: It does not matter if you like or dislike the registration or fear it will lead to a bill, all Florida homeowners associations must register. The law provides for penalties to associations and their managers for failing to register! If you need further information or desire to subscribe to our e-mail notification service, then do not hesitate to contact us.
Michael J. Gelfand is a partner in the law firm of Gelfand & Arpe, P.A., in West Palm Beach, Florida. You may reach him by e-mail at Michael@flcaj.com or by phone at (561) 655-6224.