News, Questions & Answers

Naples Daily News Q&A Column, April 23, 2017

Q: During the last election cycle we had a lot of political signs in our neighborhood.  Our governing documents provide that no signs are allowed except “for sale or rent” unless otherwise approved by the Board.  No one got approval from the Board to post political signs.  How can we stop this?

D.R., Naples

A: While political signs are not mentioned expressly in your governing documents the sign restriction you quoted would include them.  It provides that “no sign of any kind shall be displayed to public view on any Residential Lot.”  The only exceptions are signs with the resident’s name or for sale or rent sign or a security sign.  The Board can however approve signs for “temporary use.”  Thus political signs can be prohibited but the Board could also establish guidelines for temporary placement of political signs.  The Board may want to consider this because trying to stop political signs is very difficult, divisive and really gets people worked up.  Banning political signs does not violate any Federal or State law.  People think it violates their right to free speech but the constitutional protection against banning free speech applies to government banning it not private entities.  But allowing political signs X number of weeks before an election and removal within X number of days after an election may be a more workable policy.  This could be established by the Board but it should be done at a special 14 days mailed and posted notice Board meeting as it is a policy affecting the use of the Lot.

Q: Our condominium association is contemplating re-writing our governing documents.  What are the most important issues that the board should consider?

L.B., Marco Island 

A: If you governing documents, which consist of the Declaration of Condominium, Articles of Incorporation, Bylaws and Rules, have never been rewritten you should consider doing so.  Developer drafted documents often to not “fit” the post-developer community and overtime will become outdated with the laws as they are changed by the Legislature.  Amending and restating your governing documents completely replaces the current documents with new ones.  This accomplishes three major goals.  First, all of the developer language is removed as it is no longer applicable or relevant.  Second, the documents are updated to the current law.  Third, the restrictions and procedures can be modified to fit the community in 2017 and beyond as opposed to what the developer wrote many years ago.  The third area is the area that you will want to focus on the most as your legal counsel will handle the first to areas without the need for much input from you.  To start the project I suggest you form a “small” committee of nor more than three or four people to begin reviewing the current documents in the area of what I term “the do’s and don’ts.  Pets, parking and leasing restrictions are usually some of the bigger areas that most communities want to modify.  The committee should not attempt to literally rewrite the provisions but rather make notes to share with legal counsel.  Legal counsel will take those notes and draft appropriate industry standard language.  Once the committee and legal counsel come up with a draft they deem acceptable, it should be shared with the Board and then finally the membership for review and comment.  After the members had an opportunity to comment, a final draft is prepared and the members will be asked to vote to approve the documents.

Q: During our annual board meeting I brought up the problem with cats roaming our condo community.  Other owners also voiced their dissatisfaction.  The board on the other hand did not show any concern about the cat problem.  Our rules concerning this are posted “Animals roaming the property freely may be considered feral and subject to removal.  Please do not leave Pet Food outside.”  The cats are not feral, they are domestic and released by their owners.  One board member even stated we have to “Live and Let live”, instead of supporting and upholding our rules.  This has been an ongoing problem for a few years; we found out that two board members were actually feeding the cats two years ago.  Finally the board President said they have too many other pressing issues that have to be prioritized and removal could be costly and that maybe we the owners should take care of the problem.  One owner whose wife is a board member sent a letter to owners supporting the board and stating the cat problem is not the responsibility of the board.  We have a management company also.

Our board seems to be clueless about its fiduciary responsibilities to the owners and folks who live in our condo community; could you briefly touch on this please? 

B.J., Bonita Springs

A: Pursuant to the rule you quoted the fact that the cats may be domesticated and owned by someone in the community does not change the fact that if they are “roaming”, which to me means outside, not on a leash and no owner present, they “may” be considered “feral.”  The use of the word “may” suggests the Board does not have to consider them “feral”.  However, if the original owners of the cats are no longer in the community and the cats are outside all of the time on their own then I think they definitely should be considered feral and removed.  I would also suggest that the County animal control be notified to see if they can help remove the cats.

Q: I live in a large older community with a golf course.  When I bought my house I paid a premium because it has a view of the golf course.  The golf course was developed by the same developer who built and sold all the homes and golf course was advertised as the major amenity.  Now the owner of the golf course, which is not the same as the developer anymore, wants to sell the golf course so it can be developed into multi-family homes.  What can we do to stop this?

C.Z., Naples

A:  My partner Jeff Wright is handling several of these types of matters and I have asked him to answer your question.  He writes:  This is a growing problem as communities age and the popularity of golf declines.  I expect this trend to continue as golf courses provide large tracts of open land in desirable areas that developers covet.  This is also a very complex legal issue as there are many layers to consider such as what your governing documents provide, what conditions were imposed when the developments was initially permitted and current zoning restrictions.  The process involved in applying for and approving a golf course conversion, including details on your ability to challenge, can vary from one jurisdiction to the next.  I am handling several of these matters and without knowing more about your community my best advice is to not wait to start challenging the redevelopment.  The longer you wait the more leverage you will lose as certain legal and administrative hurdles are resolved by the new developer who undoubtedly will want to keep this out of the public eye as long as possible.