August 2002
MEMORANDUM TO CLIENTS
COVENANTS: GET PERMISSION BEFORE, NOT AFTER ALTERATIONS
Can’t get enough radio stations? Feel like installing ham radio
towers in your back yard? Better check with your Architectural Control Committee before
erecting antennae.
In Emerald Estates Community Association, Inc. v. Gorodetzer, 27
Fla. L. Weekly D1164 (Fla. 4th DCA, May 15, 2002), a Florida appellate court
ruled that a homeowner must obtain association approval before erecting ham radio antennae
in his back yard. The court held that the association’s Declaration of Restrictions
and Covenants clearly prohibited erection of any antennae without prior approval of the
association’s architectural control committee.
In September 1995, the homeowner purchased a home from the developer.
After receiving a verbal "okay" from the developer’s salesperson, the
homeowner erected four antennae ranging from thirteen to twenty-three feet. The
Declaration in effect when the homeowner purchased his property provided for a committee
to administer and perform the architectural reviews for the community and stated,
"[N]o antenna ... of any type shall be placed upon a home or within a lot unless
approved by the [ACC]." In addition, the Declaration provided that the approval must
be in writing.
The court explained that restrictions in declarations are given a
strong presumption of validity; thus, the court will enforce a "reasonable
unambiguous restriction" according to the intent of the parties. Here, the court
found the restrictions clear and unambiguous. "We fail to see how this clear language
represents anything but an express prohibition against the erection of any antennae
without prior approval of the ACC," the court stated.
This decision points out the importance of obtaining approval when
required before erecting structures on your property. It is important to note, however,
that applications must be treated reasonably when it comes to decisions of an aesthetic
nature. Also, the court enforced a no-waiver provision within the Declaration. The court
ruled there was no waiver by Emerald Estates regarding the homeowner’s violation of
the restrictive covenant when the association notified the homeowner of his violation as
soon as the developer transferred control of the association to the homeowners.
DOG BITE UPDATE: JUDGE SENTENCES DOG OWNER TO 4 YEARS
As you may recall, a California woman whose dog mauled to death a
neighbor was convicted in March of second-degree murder and involuntary manslaughter. Last
month, California Judge James Warren imposed the maximum sentence for manslaughter - four
years in prison. Previously, the Judge threw out her second-degree murder conviction for
lack of evidence.
Judge Warren said that Knoller deserved the maximum sentence because
she did not show remorse and lied under oath when she denied her dogs were dangerous.
"You knowingly inserted into society two massive, dangerous and uncontrollable
dogs," Judge Warren said. "You knew you could not control them, you took them
outside anyway, and it was clear at some point (that) someone was going to get hurt by
those dogs" (See April 2002, Memorandum to Clients).
COUNTY FUNDS: NO MONEY FOR GATED COMMUNITIES
Florida Attorney General Robert A. Butterworth recently opined that
public money cannot be used for the upkeep of private communities. Butterworth concluded
the Florida Constitution prohibits spending tax dollars for roads, sewers, sidewalks,
street lighting and landscaping in private communities. Butterworth stated:
I am of the opinion that county funds may not be used to maintain or
repair privately-owned roads and related infrastructure or privately-owned water and sewer
systems in private communities .... The county, however, may furnish such services if
provision is made for payment of all actual costs by the owner or owners of the private
road or water or sewer system to the county and it is determined that such a program
serves a county purpose.
County Commissioner Karen Marcus requested the opinion from
Butterworth. The opinion confirms that the county should not spend tax dollars in gated
communities where the public is denied access. The county can supply police and fire
protection in gated communities but it cannot pay for their roads.
Butterworth did state that it was up to the county commission to
determine whether the spending of tax dollars serves a county purpose. Because roads in
gated communities are generally privately owned, it is unlikely a county purpose would be
served by spending money to maintain or repair these privately owned roads. Homeowners
make a choice when they choose to live within gated communities - and that choice comes
with the price of giving up certain benefits.
FIRM NEWS
Elizabeth Caswell has moved out to the Wild Wild West to pursue a new
career. The firm is pleased to announce Jamie Stanton has been promoted to Office
Administrator. Jamie, who has been with the firm for five years, will gladly take any
questions, comments ... and congratulations.
This information is provided for public information purposes only and
is provided without obligation or fee. It is distributed to the firm's association clients
to provide a general notice of recent legal changes. This information is not to be
considered as legal advice. The changes in the law may not have been reviewed by Florida
courts and may be subject to further challenge. Before taking any action you are urged to
consult with counsel to ensure that your legal rights are protected.
© 2002 by Gelfand & Arpe, P.A. |
