Covenant Enforcement: A Trap for the Unwary

Published on: November 23, 2001

Fifteen years ago I knew all of the answers. Today, I am not sure that I know anything. A Homeowner’s Association in Margate, Florida is battling with a homeowner who enclosed his porch with screening, blocking another neighbor’s view of the canal. The enclosure was done without obtaining the permission of the Homeowner’s Association or of the neighbor. The answer to this used to be simple. Certainly, you would demand that the owner remove the enclosure. You would probably tell the owner that he would be responsible for all legal fees if your state statute and documents so provide. However, sometimes facts mess up the law. Therefore, I will provide details with the additional facts and some of the law and request that readers write to the magazine telling us all how you would deal with the problem. Since Community Associations appear to be going through a period of time where the power of the Board is becoming challenged by the rights of the owners, the diversity of opinions on how this particular matter should be handled could be enlightening. The additional facts are that the unit owner who enclosed the porch is a disabled veteran. Veterans and persons involved with ensuring the rights of the disabled are supporting the ailing veteran and are outraged that the Association has ordered him to take down the screen patio enclosure. The neighbor is obviously irate about the owner’s actions.

To further complicate matters, the totally disabled World War II veteran who uses an electric wheelchair said that the porch was his only way to get fresh air. The owner claims that he cannot go outside without the screens because he has an adverse reaction to the medications used to prevent insect bites. As one can imagine, the media has extensively reported the issue and the disabled owner has received several hundred telephone calls. According to reports, the Association’s president apparently told the reporter, “I am not allowed to talk to you”. In addition, the media has reported that the Association’s attorney has not returned phone calls placed to the attorney. To make matters even more complicated, prior to this issue becoming a serious problem, the Homeowner’s Association had approved the ten by twenty foot concrete patio slab but had not approved the screenwalls surrounding it. The covenants apparently allowed such additions, but presumably only with the consent of the Board. In October of 1996, the disabled owner tried to get a court order requiring the Association to approve the enclosure, but the case was dismissed a month later because the owner did not file all the required legal documents. The owner then dropped the court case but proceeded to erect the enclosure on or about November 17, 1996 without obtaining Homeowner Association approval. The owner also claims that before he bought his home in April of 1996, the Association’s Interview Committee chairperson had assured him that approval of the porch and screening would be routine. The Association states that the owner was in fact not told that prior to his purchase.

A quick review of the law in this case probably makes the case even more complicated. Typically, Association’s restrictions run with the land and bind all owners. However, the Fair Housing Amendments Act of 1988 states that Associations must reasonably accommodate the disabled. Certainly if the owner wanted to install a handicap ramp to allow him access to his unit, there would be little doubt that he would have the ability to do it at his own cost and expense if it were done in a manner reasonably satisfactory to the Board. Strangely enough in this case, since the Fair Housing Amendments Act of 1988 defines the word “disabled” broadly, it is possible that the reasonable accommodation is not required because the man is in a wheelchair, but rather it is required because he has adverse reactions to insect bites.

In addition, although a chairperson of a Committee might not have the power to act on behalf of the Committee or the Board, the Board in certain circumstances could be estopped from making the unit owner take down the enclosure. For example, if the owner had relied upon the statement he claims was made by the chairperson and built the enclosure, and then was told after the fact that it was illegal, a court could very well state that even though it is illegal, the owner had acted and relied upon the apparent authority of a chairperson of the Interview Committee, and taking the actions which he took, therefore, he might be able to keep the enclosure with screening. However, as stated earlier, in this case the owner had failed to get a court order in October, the case was dismissed but nonetheless the owner decided to erect the enclosure. Therefore, it is highly unlikely that even if he had relied upon the statement by the Chairperson earlier, that he presumably knew that he did not have the approval to enclose the patio area by the time he started to cause the enclosure to be installed.

Florida Community Association practitioners have informed me that Florida case law does not assure homeowners that they will be entitled to a view, and therefore it is possible that the neighbors’ concerns about not having a view any longer of the canal are not necessarily a basis for the Association having to take action.

What I find fascinating about this case is that if one were to read the media accounts of the story, one would be convinced that the Board was acting in an outrageous manner. If one were to hear about this story initially from the Board, one would guess that the owner had acted in an outrageous manner and that the Board acted responsibly in enforcing its covenants for the benefit of all owners of the community.

So you be the judge. Obviously, you must balance the compassion for the totally disabled owner war veteran, the Association must be sensitive to negative public relations even if they believe they acted in a reasonable manner, and one must not forget the poor neighbor whose water view became a porch view with a pretty good possibility that the neighbor paid a handsome premium for the view of the canal. One must also balance the expectations of all owners who purchase into the community fully aware of the covenants against the requirements of a reasonable accommodation under the Fair Housing Amendments Act of 1988. One must also balance and decide the credibility of the players. Obviously, the owner is totally disabled and is in a wheelchair, but do we know for sure that he has had adverse reactions to insect bites? The Chairperson of the Interview Committee not telling the truth when she states that she never told him that approval would be routine? To add some excitement to this process, in the fast paced world of community association living, you have thirty minutes to decide how the parties should proceed.

Time’s up, pens down.