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MASTER ASSOCIATION V. SUB ASSOCIATION – WHO WINS?
(Part
1)
By
Eric Glazer, Esq.
Published January 18, 2021
A very
interesting case was just decided by Florida’s Second District
Court of Appeal. RIVIERA-FORT MYERS
MASTER ASSOCIATION, INC.,
v.
GFH INVESTMENTS, LLC. 2020 WL 7767856.
To
simplify, in a mixed-use community, meaning a community made up
of commercial property and residential housing, the Master
Association adopted seven amendments to the community's master
declaration. The court referred to the sub associations as the
“Liner Buildings.” In general terms, the amendments addressed
the Master Association's authority to approve proposed uses of
the property located in the sub communities, (Liner Buildings)
increased assessments on them, and imposed additional
restrictions on the Liner’s tenants.
I write
about the case because it is a great learning case about the
relationship between a Master and a Sub and about community
living in general. The court said so much that we will break up
this blog over a two week period. Let’s start:
Are
all amendments voted on by owners to the governing documents
legal?
“In determining the enforceability of
an amendment to restrictive covenants, the test is one of
reasonableness.”Holiday Pines Prop.
Owners Ass'n v. Wetherington, 596
So. 2d 84, 87 (Fla. 4th DCA 1992).
This court defined “reasonable” as “not arbitrary, capricious,
or in bad faith.” Hollywood Towers
Condo. Ass'n v. Hampton, 40 So. 3d
784, 787 (Fla. 4th DCA 2010). In
other words, as we stated in Holiday Pines, the modification of
restrictions cannot “destroy the general plan of development.”
Holiday Pines,
596 So. 2d at 87 (citing
Nelle v. Loch Haven Homeowners
Ass'n, 413 So. 2d 28 (Fla. 1982)).
Amendments which cause “the relationship of lot owners to each
other and the right of individual control over one's own
property” to be altered are unenforceable.
Id. at 88. Such an alteration is
considered a “radical change of plans.” Id.
Klinow v. Island Court at Boca W. Prop.
Owners' Ass'n, 64 So.3d 177, 180 (Fla. 4th DCA 2011)
(footnote omitted). Klinow further defined “radical change” as
“a change which would create an inconsistent scheme, or a
deviation in benefit from that of the grantee to that of the
grantor.” Id. (citing FlamingoRanch
Estates, Inc. v. Sunshine Ranches Homeowners, Inc.,303 So. 2d
665, 666 (Fla. 4th DCA 1974)).
Can
the HOA Be More Restrictive than the local zoning authority?
It is
well established that restrictive covenants can be more
restrictive than limitations imposed by municipalities. See,
e.g., Luani
Plaza, Inc. v. Burton, 149 So. 3d 712,
714–16 (Fla. 3d DCA 2014)
(allowing a business owners' association to prohibit residential
use of a commercial property despite municipal permission for
residential use); Stuart Sportfishing,
Inc. v. Kehoe, 541 So. 2d 169,
170 (Fla. 4th DCA 1989) (holding that a less-restrictive
zoning ordinance did not control over a more-stringent
restrictive covenant); Tolar v. Meyer,
96 So. 2d 554, 556 (Fla. 3d DCA
1957) (holding that a zoning decision allowing property
to be used as a church did not control over a restrictive
covenant prohibiting such a use).
Do Owners Give Up Some Freedom When They Move Into a Condo or
HOA?
Owners of property in
condominium
complexes necessarily accept a greater degree of restriction
on their property rights);
Hidden Harbour Estates, Inc. v.
Basso, 393 So. 2d 637, 640 (Fla. 4th DCA 1981)
Next week
I’ll write about some other facets of the law discussed in the
opinion.
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About
HOA & Condo Blog
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Eric Glazer graduated from
the University of Miami School of Law in 1992 after
receiving a B.A. from NYU. He has practiced community
association law for more than 2
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decades and is the owner of Glazer
and Sachs, P.A. a seven attorney law firm with offices in
Fort Lauderdale and Orlando and satellite offices in Naples,
Fort Myers and Tampa.
Since 2009, Eric has been the host
of Condo Craze and HOAs, a weekly one hour radio show that airs
at noon each Sunday on 850 WFTL.
See:
www.condocrazeandhoas.com.
He is the first attorney in the
State of Florida that designed a course that certifies
condominium residents as eligible to serve on a condominium
Board of Directors and has now certified more than 10,000
Floridians all across the state. He is certified as a Circuit
Court Mediator by The Florida Supreme Court and has mediated
dozens of disputes between associations and unit owners. Eric
also devotes significant time to advancing legislation in the
best interest of Florida community association members.
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