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Attyadvisor, Attorney
Category: Real Estate Law
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Experience:  29 years of experience in General Practice, Real Estate Law and Estate Law.
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I have a townhouse with a single unit garages. Our renters

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I have a townhouse with a single unit garages. Our renters have parked their boat in the garage and alsways close the door. The HOA says it is illegal to have a boat in the garage. I have researched and found that three legal decisions apply. 1) Re: condos: garages are considered "limited common property" and not "condo common community property" thereby allowing the owner to park vehicles or boats in there. 2) Townhouse garages have been declared the owners private property thereby allowing the parking of boats or other vehicles(motorcycles, etc.) in the garage. 3) If the term "common community property" has not been defined distinctly to include an owners private property such as garages, in the HOA Docs., then again the garages are exempt from the HOA's ruling re boats. What are the specific lawsuits and legal decisions that have ruled on these three issues?
Customer: replied 1 year ago.
My townhouse is in Florida, Palm Beach County.

Welcome! My name is Maverick. Please give me a few minutes to analyze and/or research your inquiry and I will be back.

Please take a look at this case. It does not speak to your issue directly but may help you better put into context the three legal arguments that you are making. It states in relevant part:

 “Common elements” are defined as “portions of the condominium property which are not included in the units.” § 718.103(7), Fla. Stat. (1993).  Furthermore, “limited common elements” are “those common elements which are reserved for the use of a certain condominium unit or units to the exclusion of other units, as specified in the declaration of condominium.” § 718.103(17), Fla. Stat. (1993).

The determination of whether a common element is a limited common element depends solely upon the designation set forth in the property's declaration of condominium.   See § 718.106(2)(b), Fla. Stat. (1993).

Furthermore, the garage units meet the definition of limited common elements provided in section 718.103(13) in that they are common elements reserved for the use of certain unit owners to the exclusion of others.

We note further that, even if the dissent is correct in its view that garage A-12 was not a limited common element because it was not assigned at the time the Declaration was executed, the garage would at the very least constitute a common element.

Based on the above principals, it would appear to me that if the rules and regulations state that no boats are allowed, then they apply to all common elements; including limited common elements. I know this is not the answer you wanted to hear, but I am assuming that you are wanting a professional and honest answer.

Customer: replied 1 year ago.
My question had three parts pertaining to the definition and or the ability for an owner to legally store a boat in a condo garage, a townhouse garage and additionally the clarification of private property as relates to "common property" if in fact "common property" is not specifically defined in the HOA docs. The answer speaks only to a condo garage and not to the other two issues. Furthermore, approximately three weeks ago in searching the internet, I found cases that supported an owners protection to legally park a boat in both a condo related garage and a townhouse garage and also a legal case that required the HOA docs to be specifically defined. I was looking for your legal experts to locate & find these rulings & specify the exact cases.

I will let another expert try to assist you with this. Your deposit is still in tact and you need not do anything further.

I am a different attorney with 28 years of experience with HOA's throughout the U.S.

Just a little background on the how the law works. The governing documents are contract between the HOA and the owners. It is a binding contract unless the governing documents conflict with State or Federal Law.

These are the Florida laws that apply:

"Homeowner Associations are governed by a chain of governing documents and laws.

  • The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.
  • The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.
  • The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.
  • The Bylaws are the rules for management and administration.
  • Resolutions are additional rules and regulations that the association may adopt.
  • Federal Laws also apply. Some but not all include the The Fair Housing Act, Internal Revenue Codes, the American Disabilities Act, the Virginia Graeme Baker Pool and Spa Safety Act , the FCC OTARD Rule (Over the Air Reception Devices - Satellite Dishes) and the Fair Debt Collection Practices Act.
  • Information regarding State Laws specific to common interest communities such as condominiums, cooperatives, and homeowner associations are provided below and in the FAQ section of the Resouce Center. In addition there are typically additional state laws that are not specific to Common Interest Communities which require compliance. Some examples include stormwater runoff, coastal development, elevator inspections for condos, and pool operations to name a few.
  • Local Ordinances, while not specific to homeowner associations, apply to building codes, animal control, abandoned cars, water restrictions, etc.
  • Additional legal regulations can exist in the form of case law; standards set by professional organizations such as accountants, engineers, architects, home inspectors, and real estate brokers; as well as lender requirements.

Considerations:

  • State laws affecting Common Interest Communities vary widely.
  • Bills affecting Common Interest Communities are frequently being introduced in state legislatures and may be in different stages of consideration, approval, or enactment.
  • It is not uncommon to find conflicts within or between governing documents such as the covenants and the bylaws. There may also be conflicts between governing documents and statutes. When this occurs, attorneys must often consider applying Rules of Intepretation.
  • Because of the wide variance in state laws, constant changes and possible conflicts in governing documents or statutes, it is strongly recommended that association boards and members seek legal counsel and especially with firms that have expertise or strong practice experience in the area of Common Interest Community law. A good starting point is to check the HOA-USA Partner Directory for your respective state.

Florida State Laws

Florida Department of Business & Professional Regulation
Division of Florida Condominiums, Timeshares, and Mobile Homes Laws

The Division of Florida Condominiums, Timeshares, and Mobile Homes (division) has authority to enforce the following laws:

In addition, Chapters 61B-45 and 61B-50, Florida Administrative Code, contain rules relating to arbitration of disputes. Chapter 61B-25 contains rules regarding lists maintained by division for volunteer and paid mediators.

In June of 1998, the division adopted administrative rules to implement its responsibility to ensure compliance with the provisions of Chapters 718 and 719, Florida Statutes. The resolution guidelines specify the action the division will take when accepted complaints are received. The rules provide for different treatment of violations by developers and violations by unit owner controlled associations, designate violations as either major or minor, provide for different methods of complaint resolution, discuss repeat violations and aggravating and mitigating factors, and provide for civil penalties. The resolution guidelines are found in:

  • 61B-20.004 - 61B-20.006 - Resolution Guidelines for Condominium Developers
  • 61B-21.001 - 61B-21.003 - Condominium Resolution Guidelines for Unit Owner Controlled Associations
  • 61B-77.001 - 61B-77.03 - Resolution Guidelines for Cooperative Developers
  • 61B-78.002 - 61B-78.004 - Cooperative Resolution Guidelines for Unit Owner Controlled Associations

In conjunction with the jurisdiction granted to the division by the Condominium and Cooperative Acts, the following are responsibilities that the division has under Chapters 718 and 719, Florida Statutes:

  • Each condominium and cooperative association is required to pay annual fees to the division based on the number of residential condominium or cooperative units in the association. This fee is currently $4 per unit and is due by January 1 of each year.
  • The division provides training programs for condominium and cooperative association board members and unit owners, by contracting with a private vendor to provide training courses.
  • The division maintains a toll-free telephone number accessible to condominium and cooperative board members and unit owners. This number is ***-***-****.
  • The division has a program to certify both volunteer and paid mediators to provide mediation of condominium and cooperative disputes.

Homeowner Associations

Community Association Manager Licensing

  • A community association manager or community association management firm manages community associations with 10 or more residential units or budgets of $100,000 or greater for compensation. Examples of compensation are cash, goods, services, etc.
  • A community association management firm must be licensed, and each community association manager within the firm must be licensed.

If you have specific questions, please contact the department at (850)(###) ###-####/strong> or review the rules for the profession at http://www.myfloridalicense.com/dbpr/pro/cam/index.html. You should also check with your county or city to learn whether or not a local business tax receipt is required for services that do not require a state license.

Office of the Condominium Ombudsman

"It is the mission of the Office of the Condominium Ombudsman to improve the quality of life for Florida condominium owners through prompt, professional and courteous service as a neutral, informative and accessible resource." Created by an act of the Legislature in 2004, the Office of the Condominium Ombudsman was established to be a resource for unit owners, board members, condominium associations and others. The Ombudsman’s duties are described in Section(###) ###-####Florida Statutes. You may e-mail your questions concerning your condominium to the Ombudsman at: *****@******.*** or call (954)(###) ###-####/strong>." http://www.hoa-usa.com/statelaws/fl.aspx

You stated above"

My question had three parts pertaining to the definition and or the ability for an owner to legally store a boat in a condo garage, a townhouse garage and additionally the clarification of private property as relates to "common property" if in fact "common property" is not specifically defined in the HOA docs. The answer speaks only to a condo garage and not to the other two issues. Furthermore, approximately three weeks ago in searching the internet, I found cases that supported an owners protection to legally park a boat in both a condo related garage and a townhouse garage and also a legal case that required the HOA docs to be specifically defined. I was looking for your legal experts to locate & find these rulings & specify the exact cases.

!. pertaining to the definition and or the ability for an owner to legally store a boat in a condo garage, a townhouse garage

This should be set out in your governing documents. The governing documents are not just the bylaws, they include the Articles of Incorporation, CC&R's and Resolutions. Do you have copies of all the required HOA documents? This includes:

  • The Articles of Incorporation filed with the Secretary of State provide the legal basis of the association in the form of an Incorporated Non-Profit Corporation.
  • The recorded map or 'plat' defines each owner's title to property including the association's title to common areas.
  • The CCR's (Covenants, Conditions, and Restrictions) are publicly recorded deed restrictions.
  • The Bylaws are the rules for management and administration.
  • Resolutions are additional rules and regulations that the association may adopt.

2. and additionally the clarification of private property as relates to "common property" if in fact "common property" is not specifically defined in the HOA docs.

Common area elements are not personally property even if not defined in your governing documents. The Statutes that provide for all community residential associations defines "common areas" as

720.301 Definitions.—As used in this chapter, the term:

(2) “Common area” means all real property within a community which is owned or leased by an association or dedicated for use or maintenance by the association or its members, including, regardless of whether title has been conveyed to the association: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html

Under the Condo Statute a common area is defined as:

"718.108 Common elements.--

(1) "Common elements" includes within its meaning the following:

(a) The condominium property which is not included within the units.

(b) Easements through units for conduits, ducts, plumbing, wiring, and other facilities for the furnishing of utility services to units and the common elements.

(c) An easement of support in every portion of a unit which contributes to the support of a building.

(d) The property and installations required for the furnishing of utilities and other services to more than one unit or to the common elements.

(2) The declaration may designate other parts of the condominium property as common elements.

History.--s. 1, ch. 76-222.

(19) "Limited common elements" means those common elements which are reserved for the use of a certain unit or units to the exclusion of all other units, as specified in the declaration." http://www.ccfjfoundation.net/condo718statutes.html#718.108

Both in Condos and other forms of HOA's these areas would be specifically set out in declaration.

Further, under the laws that govern all residential community associations in Florida the law States:

"720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.—

(4) OFFICIAL RECORDS.—The association shall maintain each of the following items, when applicable, which constitute the official records of the association:

(b) A copy of the bylaws of the association and of each amendment to the bylaws.

(c) A copy of the articles of incorporation of the association and of each amendment thereto.

(d) A copy of the declaration of covenants and a copy of each amendment thereto.

(e) A copy of the current rules of the homeowners’ association.

(f) The minutes of all meetings of the board of directors and of the members, which minutes must be retained for at least 7 years."

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html

So you would turn to case law once you have been through all of the governing documents and found that the plat, the CC&R's and the bylaws and resolutions set out nothing defining these terms.

So before we embark on research that would require not only researching cases that may apply but checking to see if those cases are still good law today. We need to make sure that you have all of the documents that out these areas and not just the bylaws.

As I am sure that your are aware there are court cases daily and legal precedence can change as I type this response to you.

Another distinction that needs to ne made is that the board can absolutely prohibit the use of private property under an association. It can restrict running a business or parking an RV in front of your home or in a private driveway. There is a misconception that private property in an HOA cannot have it's use restricted provided it does not violate the statutes.

The only differences between common areas and owner property is that the HOA is tasked with the duty to maintain the common areas and has exclusive control over them.

Your premise that 1) Re: condos: garages are considered "limited common property" and not "condo common community property" thereby allowing the owner to park vehicles or boats in there. is not a legally valid theory as the HOA has control over the rules and regulations for the limited common areas. They can still make rules and those rules can be enforced unless there is not rule about boats being prohibited. In that case this would not be a legal violation for an owner.

Further, your premise that 2) Townhouse garages have been declared the owners private property thereby allowing the parking of boats or other vehicles(motorcycles, etc.) in the garage. This is also not true as the HOA can make restrictions on the use of private property in an HOA. The reasoning must serve a legitimate purpose or a court is likely to strike down the rule.

3) If the term "common community property" has not been defined distinctly to include an owners private property such as garages, in the HOA Docs., then again the garages are exempt from the HOA's ruling re boats. If garages are not considered common areas there still may be rules prohibiting a boat.

The confusion may be coming understand the duties of the parties. Common area is exclusive control by the board meaning the owner cannot decide the use of those areas and the board is required by law to maintain them.

Limited Common areas are a shared control as set out in the governing documents and are still bound by reasonable HOA rules.

Private property is not in the exclusive control of the HOA and the HOA is not financially responsible for private property,however, this in no way negates the HOA's ability to impose restrictions on the use of the property.

Limited common areas must be defined and the rules must be clear.

In moving forward have you checked all of the documents that govern the HOA?

Customer: replied 1 year ago.
The HOA references only "the governing documents and rules" stating that "trucks, boats, boats on trailers, or recreational vehicles such as trailers, RV's, motor homes, or campers are permitted to park on the complex premises". Does this prevent us from having boats and or motorcycles in our garages or should we look to additional articles, CCRs & resolution as previously mentioned? And is "complex premises" definitive enough to prohibit boats?
Based on what you are telling me does not address garages at all.
The other association documents may hold the answer. Is there any direct prohibition of boats in the garages? Are the garages deeded with specific units?

The HOA references only "the governing documents and rules" stating that "trucks, boats, boats on trailers, or recreational vehicles such as trailers, RV's, motor homes, or campers are permitted to park on the complex premises". Does this prevent us from having boats and or motorcycles in our garages or should we look to additional articles, CCRs & resolution as previously mentioned? And is "complex premises" definitive enough to prohibit boats?

Sorry I am on my iPhone right now and it has a mind of its own. But I wanted to get back to you.

The language is very vague This tells me nothing about where these vehicles may be excluded or prohibited. There are other documents that may address this. If you can attach your governing documents I would be happy to take a look at what they say. The articles of incorporation should be filed with the Secretary of State and the CC&R's are recorded with the county where this community is located in New York.

Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7226
Experience: 29 years of experience in General Practice, Real Estate Law and Estate Law.
Attyadvisor and 4 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.
This issue has brought a lawsuit against my renters via the HOA asking the renters to stop parking their boat in my townhouse garage. They are considering a summary judgment to resolve the issue. If they opt to not proceed, to remove the boat & follow the HOA's directions, can I, as not a party to the lawsuit, file a summary judgment to the court in this case? My reason is that when I lived in the townhouse in the late 80's, we had a number of windsurfers, canoes & small sailboats in our garage at that time and there was no issue with the HOA. My concern is that these restrictions could reduce the market value of my unit if boats, etc. were now prevented from being parked in my garage.

I, as not a party to the lawsuit, file a summary judgment to the court in this case? My reason is that when I lived in the townhouse in the late 80's, we had a number of windsurfers, canoes & small sailboats in our garage at that time and there was no issue with the HOA. My concern is that these restrictions could reduce the market value of my unit if boats, etc. were now prevented from being parked in my garage.

You are absolutely in a position to respond to this action as the owner. You are 100% that this action can not only, potentially, reduce your market value, any judgment can impact the title to your property. In fact you should have been included. As Attorneys we follow a specific path in any civil case we file in court and motion of summary judgment is one of the steps.

I am so sorry that the HOA is not backing off.