Legally Speaking

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Treasure Coast Newspapers Page G02 Sunday, 15 April 2018

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: I live in a community with a master association and multiple neighborhood associations. The master association's governing documents provide that hedges may not exceed 5 feet in height. The president of the neighborhood association just proposed a rule to allow hedges up to 7 feet. Which rule controls?
-0. R., Port St. Lucie

A: The general rule is first in time, first in right. This means that the master association governing documents almost always control because they were recorded first and because the master association can set the global rules for uniformity throughout the community. A neighborhood association can almost always adopt rules which are more restrictive, but not less restrictive. In this situation, it means that the neighborhood association could adopt a rule limiting the hedge height to 4 feet, for example, but not 6 feet, because 6 feet is less restrictive than the master covenants. Thus, absent a review of the governing documents, my initial reaction is that the neighborhood rule is invalid because it is contradictory to an express right in a controlling document.

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Subassociation Rights vs Master Rights

Date: April 20, 2018

From: Fred Weinkauff, President, Citrus Springs Master Homeowners Association

To: All Citrus Springs Property Owners Subject: Village Granting an Exception

Village F, through its Board of Directors approved an owner to park a motor home on the driveway at the owner's home. The Motor home was not being temporarily parked for cleaning and/or loading/unloading.

The Master Association has the right to enforce all provisions of the Master Declaration as in Article 7.1. Importantly the declaration for Village F allows it the limited ability to grant exceptions to its restrictions as follows in Article 10.4.16.7, Hardship.

Critically, the right of the Village F Board of Directors to grant exceptions are limited to the restrictions of its Declarations. It cannot grant an exception to the Master Declarations' covenants. The declaration for Village F is subordinate to the Master Declaration. The Village F Board cannot, without the approval of the Master issue a hardship exception to a covenant that is found in both the Master Declaration and a Village's Declaration.

When the Master Association has not granted an exception to the above restriction, the restriction is still in place and the Master Association can enforce the restriction. The owner that received the hardship exception was not aware that s/he was still not permitted to park the motor home on their driveway. It is very problematic for a sub association to grant an exception to its restrictions, if the same or similar restriction is found in the Master Declaration. In all practical terms, the owner is still bound by the restriction contained in the Master Declaration.

The Master Association can enforce and/or fine the owner for the violation. Therefore, a sub association should not grant exceptions to their restrictions if the restriction is also found in the Master Declaration. The sub-association must make it clear to the owner that an exception must also be requested and granted by the Master Association in order for the exception to be effective.