Energy Devices, Right to a View, and Tenant Damage › pdfdocs › new neighborhoods7.pdfrecord, and you have a right to review those records. Plus, it only makes sense that you wouldn’t

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EAR POLIAKOFFS, We requested approval for putting up an awning to reduce our electric bill and make our kitchen and dining areas cooler. We have a totally southern exposure out of these areas, and it is five to eight degrees hotter than the rest of the house. Our

request was rejected by the board of our association. My understanding of Florida law is that the association cannot deny us in putting up an energy saving device like this. Do you know if awnings specifically have been tested in court? Signed,

T.T.

Energy Devices, Right to a View, and Tenant Damage

BY GARY A. POLIAKOFF, J.D. AND RYAN POLIAKOFF

D

NEW NEIGHBORHOODS

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DEAR T.T., You refer in your letter to Section 163.04, Florida Statute, which provides that no covenant, or other similarly binding agreement, such as an HOA rule, may prohibit the installation of solar collectors, clotheslines, or other energy devices based on renewable resources. Your question, then, is whether an awning may be considered an “energy device based on renewable resources,” and therefore be protected by the statute. The statute never defines “energy device,” so it is left up to judicial interpretation. So we reviewed the case law. We found at least one instance where a skylight was found to be an energy saving device, but this was based on stipulation of the parties, and so was not a legal conclusion. We also saw the law generally applied to a windmill. But otherwise, there has been very little litigation over this law. You would likely have to prove that an awning is the type of device contemplated by the statute, and we think you have an uphill climb. A solar collector is clearly an energy device—it collects solar power. A clothesline uses wind power to dry clothing—again, understandably an energy device. But an awning doesn’t store, collect, or use energy at all. It may reduce the use of energy by cooling your home, but it seems a stretch to label it an energy device based on renewable resources. What would the renewable resource be? Darkness? The absence of solar energy? We’re not being facetious, but just pointing out that the argument is difficult, and it is probably not a winner, in our opinion. We can see how an awning may be better argued to be an energy-saving device, but that language is not used in the statute.

DEAR POLIAKOFFS, I live in a townhouse community in Jupiter. We have plenty of room in the development. We had an old, small, wooden swing set with a slide and two swings in an inconspicuous space across from my house that didn’t block my view of the center grass area. The swing set was in need of repair, but the president of our association, without a vote, decided to install a gigantic double slide with a plastic green rock climbing attachment and another set of three swings in an adjacent area across from the gigantic slide set. I look out my patio now and see this big green monstrosity that you would see in a county park. It’s huge and blocks my view of what was once a grassy area. I also believe this thing will affect my resale value. I confronted them about putting this up, and they said they can do what they want. I was going to get a lawyer and fight this, but, being on the board for two years, I know they have unlimited resources and a lawyer. I thought you could only replace something if it breaks. We do have other areas in the development for this monstrosity. I don’t begrudge the kids a swing set, but the location where they put it. Signed,

E.P.

DEAR E.P., Unfortunately, Florida law does not recognize a right to a view, so the fact that your view has changed or been obstructed does not provide you with a justification to challenge the association. Is your townhome community a condominium? You may be able to take advantage of Florida

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in the Declaration of Covenants (there is no provision like the above in the HOA Act).

DEAR POLIAKOFFS, We own a condominium in Boynton Beach and lease it out to a good tenant. We recently received a letter from the property manager stating that our tenant was witnessed undoing the cover and pulling the mechanism switch, leaving the entrance gate to the community open in a com-promised position. According to the property manager, because of the situation caused by our ten-ant, it was necessary to call in the maintenance staff after hours and the gate service people to make the needed repairs. Unfortu-nately, being a holiday, there were extra expenses incurred making a total of $500 in repairs. They have asked us to kindly forward

Statute section 718.113, which states that “there shall be no material alteration or substantial additions to the common elements or to real property, which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein.” We think a good argument exists that the playset you describe would constitute a material alteration. If you live in an HOA, you would need to rely on a similar provision

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a check and didn’t even send an invoice. Our tenant did admit to manually opening the gate but states that he also closed it. Do we have any right to demand an invoice? Can the HOA arbitrarily im-pose a fine without proving to us that our tenant, in fact, caused damage to the gate? Signed,

K.B.

DEAR K.B., First, it doesn’t sound from your letter as if your HOA is fining you—they are asking you to reimburse them for costs associated with damage to association property caused by your tenant. Almost cer-tainly, your declaration of covenants provides that if you or anyone associated with you (a guest, tenant, or con-tractor) damages association property or the common areas, you may be held responsible. In many cases, the costs may be assessed directly against your lot, as if it were a regu-lar maintenance assessment (it’s essentially a form of spe-cial assessment, applied only against your lot). You certainly are able to demand an in-voice, as it’s an association record, and you have a right to review those records. Plus, it only makes sense that you wouldn’t want to pay a charge without some proof the charge was legitimate. Ultimately, the HOA doesn’t really have to prove to you that your tenant caused the damage. If you don’t agree with the charge, you can chal-lenge it in court, but if you lose, you will likely be respon-sible for the association’s legal fees (as they would be yours if they were to lose).

Now, if the HOA is also fining you—that is, imposing a penalty for your tenant’s violation of the rules or covenants—you have a right to a hearing before a grievance committee made up of people who are not board members, and not related to board members—and the fine can only apply if a majority of the committee agrees. Gary A. Poliakoff and Ryan Poliakoff are co-authors of New Neigh-borhoods—The Consumer’s Guide to Condominium, Co-Op and HOA Living. Gary Poliakoff is a Founding Principal of Becker & Poliakoff, P.A., and Ryan Poliakoff is a Senior Counsel at Sachs Sax Caplan, P.L. E-mail questions to [email protected]. Please be sure to include your hometown. !