Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, 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, litigation, estate planning and business law.
Q: Our HOA Board just adopted a rule limiting the weight of large dogs. I am looking to adopt a large dog and was planning to adopt this dog before I moved into the community. Does the Board have a right to adopt this weight limit? Am I grandfathered?
A: This is a common question and I should initially note that it requires a review of the specific language in your covenants. In other words, the answer is very dependent on the word for word reading of your specific governing documents and each community has slightly different language.
The general rule is that the Board has the authority to adopt rules. First, to be valid, the governing documents must authorize the Board to adopt rules. Although some governing documents allow the Board to adopt rules, the language varies and can provide very limited authority or very broad authority.
Second, the rule must be related to the welfare of the community. Generally, dog weight would be considered relative to the welfare of the community if the Board has any reasonable cause to adopt the rule.
Finally, the rule can’t be more restrictive than an express or implied right in the Declaration. For example, if the governing documents specifically provide that owners can have 2 dogs, the express right is that owners can have 2 dogs, but the implied right is that you can have 2 dogs of any size. If this is the case, the rule would be invalid because the Board is amending the rules in a way that is more restrictive than an implied right in a controlling document (the Declaration). There are many other factors that are relevant when interpreting pet restrictions, and therefore I would ultimately recommend you have the covenants reviewed by a licensed Florida attorney.
With respect to grandfathering, if the rule is invalid, it would not apply. If the rule is valid, and the rule is enforceable prior to your adoption of the large dog, you would be prohibited from keeping the large dog. If you adopt the large dog prior to the rule being effective, you would most likely be able to keep the dog based on an equity argument.
Q: Our condominium documents say that the annual meeting and election must take place in January. The current Board is ignoring that requirement so that they can push through a controversial vote in February and the outcome may change if the vote actually occurs in January. Is this legal?
T.R., Treasure Coast
A: If the governing documents require the annual meeting to occur in January, they must occur in January. There are a number of arbitration decisions requiring a condominium to immediately schedule an election when they are past due based on the Bylaws.
Because condominium elections must be noticed at least 60 days before the election, I would demand the Board immediately notice the election for as soon as possible. Unfortunately, this would inevitably push you into February because it is too late to start the procedure for a January election under Florida law. Nevertheless, the Board may reconsider taking a controversial action with an imminent election that is either intentionally or unintentionally overdue.
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: 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.