TC Palm Q&A Column, August 27, 2017

By August 27, 2017News, Questions & Answers

Q: I live in a condominium on Hutchinson Island in St. Lucie County.  When we purchased our condominium, we got a trailer space.  There are three (3) boards.  Recently, one of the boards decided no more trailers, but boats can stay – which take up two parking spaces instead of one like the trailers do.  A meeting was held and the other two (2) boards concurred.   There is a large grass area that could be used for parking trailers but we were told that it is for a leeching field.  The County informed us it has not been used since 1993 for that purpose and it could be graveled without the need of a permit and be used for trailer parking.  I would appreciate any advice or information you can find out for us.  

J.K., Jensen Beach

A: In order to accurately provide answers to your question posed by condominium unit owners, I routinely conduct an analysis of the condominium association’s governing documents, which include the declaration of condominium, the condominium association’s articles of incorporation and by-laws, and the association’s promulgated rules and regulations (“the governing documents”).  Under Florida condominium law, parking restrictions may be described in any one, some or all of the governing documents.  However, my analysis will be based on the assumption that the declaration of condominium of your Association empowers the Association to promulgate rules and regulations, and that the regulation of the parking of trailers is among the rules which the board has implemented.  

When board-made rules are challenged, the applicable rule of law focuses in whether the rule is reasonable. The longstanding policy adopted by Florida’s appellate courts regarding the implementation of board made rules is based on the premise that “ inherent in the condominium concept, is the principle that to promote the health, happiness, and peace of mind of the majority of the unit owners, since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.”  Therefore, if the board of directors had a reasonable basis for changing the trailer parking rule, then the likelihood is that the rule will prevail.  However, rules must be applied in a uniform and non-discriminatory manner.  On that issue, the change in the subject rule which now prohibits the parking of trailers, but which allows the parking of boats may be subject to challenge unless the board can show the reasons for the disparate and unequal treatment between trailer owners and boast owners.  

As to the changing of rules in circumstances in which unit owners have acted upon the old rule in reliance of the rights granted under the old rule, in the event the new rule changes those previously granted rights, such a rule change typically should not be applied retroactively as to the unit owners who justifiably relied and acted upon the previous rule.  Under such circumstances, the best practice is for the board of directors to apply the changed rule prospectively.  That practice is commonly referred to as “grandfathering,” which essential permits unit owners who justifiably acted on the old rule, but who would be in technical non-compliance with the new rule, to continue to act under the previous rule.  Under such circumstances, fair minded board members customarily permit the prior permitted use to continue until some date in the future.  As applied to your case, it appears that when you purchased your home and trailer you did so in reliance of the rule which permitted you to park your trailer in the community.  Therefore, you may wish to send a written notice of inquiry to the association, wherein you explain the facts and circumstances of your case, including your reliance on the old rule, and request that the Association permit you to keep your trailer parked as it has been under the old rule until you either have no further desire to park the trailer there or until you sell your home.  In the event, you are unsuccessful, you have the option to commence a mandatory non-binding arbitration action with the Florida Division of Land Sales, Condominiums and Mobile Homes.

Good luck!

Ronald E. D’Anna, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross.  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.