Each week, Jan, Darlys and I agree on a new topic to blog about. This week, Jan suggested that we blog about gates and fences. My first thought was……..how much can I possibly write about gates and fences? What comment can I make about a gate or a fence that would make the reader care about reading the next paragraph? It turns out though that Jan was right all along. Gates and fences have been at the heart of so much litigation in our communities over they years. Here’s why……
Security: Some people believe that installation of gates and fences around the community increases the safety of the community. Others believe that they provide a false sense of security and have watched videos of burglars tossing people’s belongings over the security fence and into their getaway vehicle. The question is….can a community that does not have gates install them without a vote of the members of the community, or is it a “material alteration” that requires a unit owner vote? Surprisingly, arbitrators in Tallahassee have ruled that the installation of security gates or fences is not a material alteration if the Board’s decision is based upon their desire to make the community safer, in light of a documented history of crime. No unit owner vote is required.
Fencing off your own little playground: Three years ago, I successfully represented an association against an owner who decided to fence off a small portion of the common areas to the exclusion of others, because it was simply adjacent to her home. She claimed that she received verbal authorization from the developer who was also a member of the Board at the time. On appeal, the 4th District Court of Appeal held that since the declaration required “written” authorization from the Board for such a change, her fence had to go. I’m sure this happens in lots of communities.
Using the gate as a form of harassment or intimidation: This one is kind of new. As many of you know, both the Florida condominium and HOA statutes allow the association to restrict the rights of owners to use the common areas if they become delinquent in the payment of monies owed to the association. The condominium statute states however that the association cannot suspend the right of a delinquent owner to access common elements needed to access the unit. The HOA statute states that the association cannot impair the right of an owner or a tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel. Despite these restrictions in the statutes, many associations have forced non paying owners to use the security drive thru gate instead of being able to use the gate that opens with a magic eye or clicker. Associations have taken the position that by forcing the non paying owner to use the security gate they are not impairing access to the owner’s unit, but are simply making it more difficult to get there. I for one agree.
Entrance ways and exit ways: The CCFJ website (www.ccfj.net) has an amazing news story about a community where many children live. The community bordered on a school that is about 100 feet from the community, as long as the association allowed the kids to use a particular exit gate. Rather than let the children use the gate, the Board decided to close it, forcing the children to walk several miles to school instead of a few yards! Boards are supposed to be concerned with the health and safety of its members. Making these kids walk miles instead of yards is a clear indication to me of mixed up priorities on the part of this Board. In fact, it sounds downright evil. Most of the time gates and fences are used to keep the bad guys out. In this case, I think it keeps them locked in.