Editor’s note: Attorneys at Goede, DeBoest & Cross, 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, civil litigation, estate planning and commercial transactions.
Q: I am a new member of my condominium board and one of the issues we are currently dealing with is smokers. While we do have rules regarding prohibitions on smoking in the property’s common areas, I have been told that these restrictions do not extend to smoking within the units themselves. The problem is that smoke from the units are wafting out into the hallways or onto patios and bothering non-smoking residents. Can we implement any rules regulating smoking in the units?
-R.T., Stuart
A: The Florida Clean Air Act applies to all types of tobacco smoke and is generally accepted to apply to both condominium and homeowners’ association’s indoor common elements. In addition, community associations also have the power to create smoking bans even for outdoor common elements not specifically covered by the Clean Air Act, such as pools, tennis courts, dog walks and playgrounds. Because a Board’s rule-making authority is derived from the governing documents, such rules are generally enforceable, provided they are “reasonable.” These restrictions on smoking can even be extended to limited common elements, such as balconies, by a proper vote of the board provided that the governing documents provide such rule-making authority.
Banning smoking within the units is far more complicated because, unlike common elements and limited common elements over which the association has certain ownership rights (as defined the association’s declaration), the units themselves are owned by members. While the majority of declarations have included “nuisance” clauses that allow associations to regulate and prohibit nuisances, such clauses rarely specifically reference smoking as a nuisance. Because of this, it is unlikely that a Court or arbitrator would stretch a nuisance clause to cover smoking if it is not expressly included in the clause.
Therefore, if an association wishes to ban smoking within the units, the governing documents must be amended to include this specific prohibition within the nuisance clause. Although amendment procedures may vary from association to association, the declarations need to be reviewed by an experience attorney to determine the proper procedure for your association and whether such nuisance rules can be incorporated into your existing documents.
Q: We recently had an owner at our association demand access to emails between Board members as part of an official records request. Are we legally bound to supply access to emails upon such a request?
-M.K., Vero Beach
A: All community associations in Florida, including condominiums and homeowner’s associations, are required to keep and maintain its official records and, upon request, those official records must to be made available to all members at reasonable times. Both the Condominium Act (Chapter 718) and the Homeowners Association Act (Chapter 720) contain lists of items that are considered official records of a community association, emails are specifically not listed. However, both statutes do include a catch-all provision that provides that “all other written records of the association not specifically included in the foregoing which are related to the operation of the association” must be kept, as well. While there has been some debate on the absence of language specifically addressing emails and the ambiguity associated therewith, there is at least one arbitration decision that has addressed the issue. The decision made in that matter was that an email that is only on a personal computer of an individual director and not on an “association computer” is not considered an official record of the association. In short, the arbitrator found that the property of an individual director does not become the property of the association simply because of his position on the board.
An email from or to a board member does not count as an official record of the association no more than a statement by an individual director is an official declaration by the board. However, if there are emails sent from a computer owned by the association or if emails are printed and passed around for discussion at a board meeting, these emails may constitute official records. An association, its manager or its members should contact an attorney experienced in community association law before deciding whether certain items constitute official records that are required to be maintained for inspection.
Q: There has been a lot of abuse by some owners in my community in regard to advertising their homes through websites like Airbnb. Is there anything that we can do to stop these sorts of rentals?
-K.S., West Palm Beach
With the new internet economy came the rise of short-term rental websites like Airbnb, Inc. and VRBO. With the mainstream acceptance of these types of rental relationships, HOAs and condominium associations have been forced to confront new challenges in policing owners who violate restrictions against short-term leasing.
While most governing documents will contain prohibitions on short-term rentals, the language used may not always be enough to prevent a knowledgeable owner from taking advantage of ambiguities. Some associations have resorted to trying to actively monitor the rental websites, but this ends up being a losing battle as it is difficult to always be on top of every new listing, especially in a vacation destination such as South Florida. In addition, unless the governing documents specifically restricts owners from advertising his or her property as a rental, the association likely has no way to enforce a broad restriction on short-term leasing, until after the property has actually been leased.
To combat these issues, associations should meet with an attorney to review the governing documents and, if none exists, consider amending them to include specific provisions restricting short-term vacation rentals. Additionally, it you can work within your existing rules to strengthen their enforcement provisions discouraging owners from violating short-term leasing restrictions.
Harris B. Katz, Esq., is Managing Partner, Boca Raton of the Law Firm Goede, DeBoest & Cross. Ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.