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Can association board members enter an owner’s property?

Q. Our architectural review board approved plans submitted by an owner for a new fence in his backyard. The approved fence was to be a short, black-iron fence that did not extend past the width of the rear patio. Construction started and the fence is much taller and wider than approved and will extend well beyond the width of the actual home when completed. All other approved fences are similar to the fence approved for this owner. We have demanded that the owner stop work and remove the larger fence or modify the improvements in accordance with the approved plans. Can the homeowners association enter the property and remove the fence if the owner refuses to comply? – F.D.

A. The owner should have submitted a new application for the larger fence, but now that it is installed, the solutions are not so simple. Even if the community declaration contains sufficient authority for the association’s agents to enter property and correct this violation, there are some things to consider before sending out the demolition team. The association needs to weigh the severity of the violation against the risks involved with entering private property and tearing down a fence. For instance, the landscaping for abandoned or foreclosed homes can quickly deteriorate and there is very little risk involved with the association hiring a landscape company to maintain the exterior until the property changes hands. The cost of that maintenance can be recovered from the owner of the property in most cases. However, if the home is occupied by a full-time resident, who is likely to get upset and start an altercation when a crew starts to demolish the shiny new fence, the association should seriously consider other alternatives. The association can impose fines of up to $100 for each day the owner fails to comply, which could result in a lien if not paid. The association can also pursue an order in court to force the owner’s compliance and recover attorney’s fees incurred in that process. The association likely has the law on its side in this case, but we certainly recommend that your board consult with its legal counsel before exercising self-help and entering the owner’s property.

Q. In our private gated community, all owners who live in multi-family communities are provided access roads to their driveways, with the exception of three multifamily communities located on one particular street. The owners in those three communities are required to pay for their own road maintenance in addition to the dues they are required to pay to the master association. All other owners enjoy access and road maintenance without additional fees. Is it legal for the master association to charge these additional maintenance fees to only certain communities or should road maintenance be a common expense for all residents? – B.B

A. The answer to your question is probably found in the community documents. In most communities with a master association, common facilities such as the gatehouse, the master association operates roadways, clubhouse, lakes and recreational facilities and all residents share the expenses equally. It is also possible for the developer to allocate a larger or smaller share of the expenses based on square footage. It is natural for certain homeowners to feel that they are paying more than their fair share of the operating expenses. For instance, a homeowner who lives very close to the community entrance uses the private roadways far less than a resident who lives a couple miles from the entrance, but the essence of community living is that owners by and large share in the common expenses equally regardless of the actual amount of use. Without having the benefit of reading your community documents, our guess is that these three communities that pay more money for the roadways are not part of the original development and may share in the expense by a separate cost-sharing access agreement created for another developer or phase. You need to have legal counsel review the community documents, subdivision plats and the master budget to get a more precise answer.

Q. In a recent column, attorney Mark Adamczyk answered a question about the legality of running credit checks on tenants who wish to rent in associations. Does your firm see many condominium documents that actually require the association’s board of directors to run a credit report on tenants? Tenants are not responsible for paying the association fees and there is no credit relationship between the association and a tenant. Further, if an association rejects a minority applicant because of his credit report, could this become a fair housing issue? As an aside, very few board members have experience in reading credit reports. – E.G.

A. We have not seen many condo or homeowners association documents that require the association to obtain a credit report for tenants, but as explained in our August 26 column, it is a common practice to review a tenant’s credit history as part of the leasing application. Again, the association’s board must have sufficient authority in the community documents and rules in order to request credit history and other background checks. We have dealt with unit owners who have made the same argument you make. Their position is that the tenant’s financial condition is of no concern for the association and that only a criminal background check is possibly proper. We somewhat disagree. Many community associations we represent have found that both tenants and owners with a history of financial irresponsibility are less likely to follow the community rules. Further, if the owner defaults in the payment of assessments, the association does have the legal ability to garnish and collect rents directly from the tenant under Florida law. Thus, a reasonable argument can be made that credit history is an important factor for associations to consider. Certainly, if an association selectively reviews credit history based on the applicant’s race, religion or national origin, there will be a fair housing issue.