Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
Q: I live in a homeowners association located next to a waterway. In 2017 the Board of Directors adopted rules allowing boat lifts to be installed with canopies on the boat docks. The rules included certain detailed specifications regarding the height of the lift, how far out of the water the boat must be raised and the height of the canopies. In 2017 I purchased a boat and installed a boat lift and canopy all in conformance with the specifications. Recently, the Board has changed the specifications to provide that the boat lifts must be able raise the boat higher out of the water than previously required and that the canopies must be lower than previously required. My boat lift and canopy do not meet the new specifications and cannot be modified to meet the new specifications. The Board is aware of this problem but are insisting that I must comply with the new rules. Do I have to comply?
A: No. In my opinion this is a classic case of “grandfathering”. Grandfathering is a doctrine in which an old rule continues to apply to some existing situations while a new rule will apply to all future cases. Those exempt from the new rule are said to have grandfather rights or acquired rights. When you purchased your boat and installed your lift and canopy it was in full compliance with the rules. Now that the rules have changed previously compliant lifts, boats and canopies cannot be made to conform with the new specifications and are exempt. The grandfathering would continue until such time as you installed a new lift and canopy.
Q: Our association has an attorney that we regularly use for mostly sending enforcement letters. We have asked the attorney to include the legal fee for the letter in the enforcement letter. The attorney has indicated that such fees are not collectible from the violating owner. Is this correct?
A: In most cases the answer is yes, because Courts will rarely award “pre-suit” legal fees. The fee for writing the initial demand letter before a lawsuit is filed is typically considered “the cost of doing business” and each side has to pay its own legal fees up to the point a lawsuit is filed. Once in Court, if there is a prevailing party attorney fee provision, then the Court will award fees incurred to prepare the lawsuit and conducting the suit. The only exception is if the association’s governing documents are very specific and provide that pre-suit fees are payable by the violator; however, most governing documents are not that specific, and even when they are, it is not a slam dunk win for the association. The violator will often refuse to pay the fee for the letter which is typically at least a couple of hundred dollars. The association is then faced with filing suit to collect what the Court will undoubtedly view as a nominal fee, and you will likely spend much more than that amount trying to collect the initial fee in the Court action.
Q: At our condo, some owners want to add Futsal (5 v 5 soccer) lines within our existing tennis court to make it a two-in-one use. Does adding the lines to make the court work for the Futsal rules constitute a material alteration of the common element? I would appreciate your advice.
-E.S., St. Petersberg
A: Based on the test enunciated in Sterling Village Condominium, Inc., “[a] change…is material or substantial if it “palpably or perceptively varies or changes the form, shape, elements or specifications” of the common elements “in such a manner as to appreciably effect or influence its function, use or appearance.” In this case, your community wants to make a change to the tennis courts that will effect or influence the function, use or appearance of the tennis courts. The Futsal lines are visible and will significantly change how the tennis courts are used. Also, residents who would otherwise not have to wait to use the tennis courts, will now have to if residents are playing Futsal. As such, unless your condominium documents provide for another method for the approval of material alterations, approval from 75% of the total voting interests is needed in order to make this alteration.
Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. 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.