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Community Living

Can long-time violation be cited? It depends

By RICHARD WHITE
Published July 16, 2005

Q. Can the current board enforce a deed restriction that has gone unenforced for a long time, say seven years? No one has complained about this long-running violation. Can the board or the management cite the owner now?

A. The answer depends on several factors. Were the board and management aware of the violation? Did they fail to attempt to correct the violation? Were others allowed to commit the same violation without penalty? Was the violation in full public view or was it concealed?

Let's look at a couple of scenarios. Suppose you (legally) enclosed your patio and (legally) installed a fence around your back yard. Although your rules prohibit window air conditioners, you (illegally) installed one, low to the ground and invisible unless one is standing in the back yard. Seven years later, the air conditioner starts to make noise, disturbing your neighbor. He complains to the board, which investigates and finds your illegal air conditioner. Chances are they will be successful in requiring that you remove the air conditioner.

Now imagine the same scenario, except that every year you have a Christmas party to which you invite the board. They see the illegal air conditioning unit in your enclosed patio, but they take no action. Since they were aware of the rule violation but did nothing, chances are good that the rule is unenforceable.

Q. Is there a state statute regarding property sales that requires disclosure of existing or pending conditions of association property?

A. I strongly urge that any defective condition or inoperative system in the common areas be disclosed before a unit or home is sold. Even a pending situation that may have an impact on future assessments should be disclosed. Better to speak now than to withhold information about possible problems.

Q. One of our condo residents has asked for the complete address and telephone list of members, including summer addresses for those who are gone part of the year. Many owners don't want this information disclosed, especially some older women with unlisted phones. Can you give us some guidance?

A. If a unit owner makes a written request for this information, the board is required to provide it. You can caution the requesting owner that the information is not to be used for commercial purposes (i.e., sending out mailings that solicit business for his company). You may want to do some pre-emptive work here. Send a letter to your members informing them that this information is public and that the board or management has no authority to withhold it. You can also point out that this information is readily available from many other public sources. It's very easy for anyone to acquire a mailing list or phone list. The association is not the only source of this information and shouldn't be held responsible for every piece of unwanted mail or every annoying telemarketing call.

Richard White is a licensed community associations manager. Write to him c/o Community Living, St. Petersburg Times, P.O. Box 1121, St. Petersburg, FL 33731; or e-mail him at CAMquestions@cfl.rr.com Please include your name and city. Questions should concern association operations; legal opinions cannot be offered. For specific legal advice, contact an association attorney.

Readers may call the state Division of Condominiums Bureau of Customer Service at toll-free 1-800-226-9101 with questions or requests for materials. Access the Bureau of Condominiums Web site at www.state.fl.us/dbpr/lsc/index.shtml or write to Bureau of Customer Service, 1940 N Monroe St., Northwood Centre, Tallahassee, FL 32399-1032.

Please note that this office provides no information about homeowners' associations. The state has no bureau or department covering those associations.

[Last modified July 15, 2005, 09:10:05]