Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Florida just became legal for open carry of weapons. Does our board have the right to ban open carry in our common areas (community pool, gym, tot lot, board meetings) without having a vote from the community? Signed, L.M.
Dear L.M.,
I just had this exact question come up last week. Amendments to covenants are broadly enforced — and so you have a better chance of implementing a restriction though an amendment than through a board-made rule. Rules, in contrast, are judged on a reasonableness standard. The question with a rule will be whether you are addressing an existing and legitimate association problem, and whether the rule is intended to correct that problem.
Overall, though, my suspicion is that both covenants and rules limiting the open display of firearms would be ruled enforceable.
Now, there’s always a chance that a judge would find that it is the public policy of the state of Florida to allow guns to be displayed anywhere; and that, as a result, any limitations in any location other than your own home are invalid. But restrictions on the possession of weapons on private property are common.
In most instances a private landowner can restrict guns on its own property. Again, until we have a court case challenging such a covenant or rule, we won’t know for sure, and there’s no question that an amendment to your declaration would hold more weight; but I tend to think that both covenants and rules prohibiting the open carry of weapons in common areas would be enforceable.
Can 50-year-old fly-in community change its rules to demand new owners be pilots?
Question: Our community is an airpark with the prime amenity being a runway for airplanes. It was built in 1974 with the intent to attract pilots with airplanes to live with their airplane in the community. Only two people owned a property here who did not fly or own an airplane, but they supported our goals to maintain our airpark as a premier flying community.
There are communities that appeal to tennis players, golfers, swimmers, MDs, CPAs and lawyers. But none have ever restricted their owners to those with a special interest. Some of our members are concerned that non-pilots may be attracted to our community, and these members want to restrict new buyers to only those who are involved in aviation and hold a current and valid FAA pilot’s license.
We bought with the knowledge we could sell to anyone. We are opposed to this restriction because we think it will limit the buying market and therefore decrease the value of our properties. We have asked and are receiving conflicting opinions. In your opinion, can the membership impose this new restriction? What can we do? Signed, W.T.
Dear W.T.,
I’m not sure that I’m aware of any housing communities that are geared specifically for doctors or lawyers, but I get your point. I’m not going to comment on your concern that limiting buyers to licensed pilots will reduce your property values, because frankly, I have no idea if that’s the case.
On the one hand you’d be reducing the pool of eligible buyers, on the other hand the exclusivity could appeal to serious pilots and thereby increase your housing prices. But whatever the answer, it’s not going to be relevant to whether such a restriction would be legal.
Covenants (and properly-passed amendments to covenants) are given a broad presumption of validity and are only rarely found to be unenforceable — typically because they violate the public policy of the state, or a fundamental constitutional right, or because they are arbitrary in their application. But generally speaking, and if a restriction on ownership does not otherwise violate discrimination laws, it is theoretically possible to amend your declaration of covenants to restrict ownership to only licensed pilots.
Of course you can’t divest existing non-pilot owners of their home, but you can restrict whom they could sell their home to in the future.
Ownership restrictions in deed-restricted communities are common. Some examples include restrictions on corporate ownership, restrictions based on financial background or restricting people from owning more than a single unit or home. This is the same kind of restriction — it is just specifying that owners must have a particular type of license to be eligible to own property in the community.
Unless a court were to say that this is somehow a violation of the public policy of the state (which would surprise me), my gut feeling is that such a restriction would in fact be enforceable.
The law is clear that you bought your home aware that the covenants could be amended and that you would be bound by those restrictions. So, your only option, if you disagree with such a restriction, is to convince your neighbors not to support it, to resign yourself to fighting the restriction in court, or to sell your home now.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Can HOA ban guns from pool areas, board meetings despite Florida’s new open carry law?
Reporting by Ryan Poliakoff / Palm Beach Post
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