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ARCHITECTURAL REVIEW COMMITTEES – THEIR POWERS
GET SLASHED
By
Eric Glazer, Esq.
Published April 22, 2024
HB 1203 made some major changes regarding
architectural review committees. To sum it up, their powers were
greatly slashed. Let’s take a look:
An association
or any architectural, construction improvement, or similar
committee of an association must reasonably and equitably apply
and enforce on all parcel owners the architectural and
construction improvement standards authorized by the declaration
of covenants or other published guidelines and standards
authorized by the declaration of covenants.
So now, the architectural review committee
must act reasonably and equitably. I’m not 100% sure what it
means, but it certainly means that what applies to one applies
to all. It also may mean that even though you have a provision
in your ARC standards, if it makes no sense, don’t enforce it
just because it’s there.
(b) An
association or any architectural, construction improvement, or
other such similar committee of an association may not enforce
or adopt a covenant, rule, or guideline that:
1. Limits or places requirements on the interior of a structure
that is not visible from the parcel's frontage or an adjacent
parcel.
2. Requires the review and approval of plans and specifications
for a central air-conditioning, refrigeration, heating, or
ventilating system by the association or any architectural,
construction improvement, or other such similar committee of an
association, if such system is not visible from the parcel's
frontage and is substantially similar to a system that is
approved or recommended by the association or a committee
thereof.
In sum, this clearly means two things: (1)
stay out of my home. It’s none of your business what I do behind
my closed doors, if it has no effect on you. It also means,
don’t tell me what to do with the outside of my property, if it
has no effect on you.
If the
association or any architectural, construction improvement, or
other such similar committee of the association denies a parcel
owner's request or application for the construction of a
structure or other improvement on a parcel, the association or
committee must provide written notice to the parcel owner
stating with specificity the rule or covenant on which the
association or committee relied when denying the request or
application and the specific aspect or part of the proposed
improvement that does not conform to such rule or covenant.
In simple terms, this certainly means that
you have to tell me what I am being charged with and why I can’t
make my requested change. It says that I’m entitled to due
process and who can argue with this?
(b) If a parcel
owner's rights and privileges have been unreasonably infringed
upon or impaired by a decision concerning the architectural use
of his or her parcel or the construction of permitted structures
and improvements on such parcel by the association or any
architectural, construction improvement, or other such similar
committee of the association, the association must provide the
parcel owner with the ability to appeal such decision to an
appeals committee that consists of at least three members
appointed by the board who are not officers, directors, or
employees of the association or members of the architectural,
construction improvement, or other similar committee of the
association. The appeals committee has the right to reverse,
modify, or affirm the decision being appealed. A parcel owner
may appeal a decision of the association or any architectural,
construction improvement, or other such similar committee of the
association within 90 days after the owner receives written
notification of the initial decision. The appeals committee must
make a decision on the issue under appeal within 60 days after
receiving a parcel owner's request for an appeal.
I have to tell you, I didn’t see this bill
coming. It is hard enough to get people to serve on your
architectural review committee. Now, it may be harder to find
additional people to serve on an appeals committee from
decisions of the architectural review committee. I’m certainly
in favor of giving owners the ability to appeal a decision of
the Architectural Review Committee, especially when these
decisions have major ramifications about what people can do with
their most prized possession and asset. Here’s the problem
though. Under the new law, the association must have this
appeals committee in place. If the association fails to create
such a committee and the unit owner is denied the right of an
appeal, it is this attorney’s position that the decision of the
ARC is invalid or void because there is no right of appeal where
the statute requires same.
An answer to this equation may be to see if
those persons who are good enough to serve on the fining
committee would also be willing to serve on the Appeals
Committee
In any event, the foregoing changes to the
law diminishes the power of the Architectural Review Committee.
The theme of this year’s legislation is just that, diminish the
power of the board or committees over owners and give owners
greater rights to challenge decisions of these boards or
committees while at the same time keeping the members of these
boards or committees under the microscope and subject to the
criminal statutes. We’ll show you some more examples of this
next week.
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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 three decades and is the owner of
Glazer and Sachs, P.A. a five attorney law firm with
offices in Fort Lauderdale and Orlando.
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Eric is Board Certified by The Florida Bar in
Condominium and Planned Development Law.
Since 2009, Eric
has been the host of Condo Craze and HOAs, a weekly one-hour
radio show airing at 11 a.m. each Sunday on 850 WFTL. Recently,
he moved the show to YouTube, transforming it into a more
dynamic and interactive experience. This move not only allows
viewers to engage in live chats with Eric and other participants
but also enables a broader audience to access free advice,
making valuable insights more widely available.
See:
www.condocrazeandhoas.com.
Eric is the first attorney in the State of
Florida that designed a course that certifies condominium and
HOA residents as eligible to serve on a Board of Directors and
has now certified more than 20,000 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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