Can someone paint home any color without HOA permission?

By November 4, 2018News, Questions & Answers

Q: My neighbor painted his house and did not ask my permission. It is now a bright yellow and clashes with everything. I am not sure he asked the HOA for approval either. What can I do?

-TB, Treasure Coast

A: There are a few different issues in your question. First, I have only seen very few documents that would require neighbor approval for any architectural request and even then enforcement is legally questionable. In other words, the neighbor did not need your consent.

That being said, the neighbor probably did require the association’s approval. I would recommend asking your property manager whether the paint color was changed and ask for documents relevant to the approval process.

If the owner painted without requisite approvals, the Association may be able to fine the owner $100 per day or pursue a lawsuit for injunctive relief to compel the owner to apply for an acceptable color and paint the home an acceptable color. The neighbor may also be responsible for the Association’s attorneys’ fees and costs.

It is worth pointing out, however, that the Association’s approval authority is only as good as its architectural criteria. Florida law changed about 10 years ago to require specific and objective standards. If your neighborhood’s architectural criteria allow for approval or denial based on “harmony” or in the “Association’s discretion” then its possible the yellow house will stay. This is not because the Association approves yellow houses, but because the Association would lack the ability to deny a bright yellow house. We routinely advise our HOA clients to periodically review their architectural criteria to ensure they are objecting and specific with respect to color, size, location, materials, and other specific criteria.

Q: Are tenants eligible to run for my condominium Board?

-PA, Stuart

A: Possibly. Chapter 718 of the Florida Statutes governing condominiums does not restrict board eligibility to unit owners. The statutes do require Directors to be current on assessments, able to exercise civil rights, and in good standing with the Division of Condominiums, but do not prohibit tenants are other eligible members of the public from serving on your condominium Board.

Most condominium Bylaws, however, do restrict eligibility. Specifically, most condominium Bylaws provide that Directors must be Owners or Members of the Association. If your Bylaws include this restriction, then no, your tenant would not be eligible unless the tenant matched the definition of an owner or member.

Q: Our homeowners association employs a tennis professional and we want to discuss his compensation in executive session.  To do so, we obviously need to talk about the budget and other financial records. Do we need to open the meeting to the members for the budgetary discussion?

-TN, Vero Beach

A: In my opinion, no. Florida law provides that all Board meetings must be open to the membership with few exceptions. One of those exceptions allows the Board to conduct a closed meeting to discuss personnel matters. If your homeowners’ association needs to discuss raises, bonuses and financial compensation to an employee, it seems prudent that you likewise need to discuss how much money you have available in the budget and in the bank account. Those discussions should remain in executive session provided that the purpose is in connection with personnel discussions. If you start discussing other vendors and other budgetary matters, those discussions should be reserved for an open meeting.

Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.