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GATES
AND FENCES CAN BE AS BAD AS BARBED WIRE
By
Eric Glazer, Esq.
Published
October 15, 2012
Each week, Jan, Darlys and I agree on a new topic to blog
about. This week,
Jan suggested that we blog about gates and fences.
My first thought was……..how much can I possibly write
about gates and fences? What
comment can I make about a gate or a fence that would make the
reader care about reading the next paragraph?
It turns out though that Jan was right all along.
Gates and fences have been at the heart of so much
litigation in our communities over they years.
Here's why……
Security: Some
people believe that installation of gates and fences around the
community increases the safety of the community.
Others believe that they provide a false sense of
security and have watched videos of burglars tossing people's
belongings over the security fence and into their getaway
vehicle. The
question is….can a community that does not have gates install
them without a vote of the members of the community, or is it a
"material alteration" that requires a unit owner vote?
Surprisingly, arbitrators in
Tallahassee
have ruled that the installation of security gates or fences is
not a material alteration if the Board's decision is based upon
their desire to make the community safer, in light of a
documented history of crime.
No unit owner vote is required.
Fencing off your own little playground: Three years
ago, I successfully represented an association against an owner
who decided to fence off a small portion of the common areas to
the exclusion of others, because it was simply adjacent to her
home. She claimed
that she received verbal authorization from the developer who
was also a member of the Board at the time.
On appeal, the 4th District Court of Appeal held that
since the declaration required "written" authorization
from the Board for such a change, her fence had to go.
I'm sure this happens in lots of communities.
Using the gate as a form of harassment or intimidation:
This one is kind of new.
As many of you know, both the
Florida
condominium and HOA statutes allow the association to restrict
the rights of owners to use the common areas if they become
delinquent in the payment of monies owed to the association.
The condominium statute states however that the
association cannot suspend the right of a delinquent owner to
access common elements needed to access the unit.
The HOA statute states that the association cannot impair
the right of an owner or a tenant of a parcel to have vehicular
and pedestrian ingress to and egress from the parcel.
Despite these restrictions in the statutes, many
associations have forced non paying owners to use the security
drive thru gate instead of being able to use the gate that opens
with a magic eye or clicker.
Associations have taken the position that by forcing the
non paying owner to use the security gate they are not impairing
access to the owner's unit, but are simply making it more
difficult to get there. I
for one agree.
Entrance ways and exit ways: The CCFJ website (www.ccfj.net)
has an amazing news story about a community where many children
live. The community
bordered on a school that is about 100 feet from the community,
as long as the association allowed the kids to use a particular
exit gate. Rather
than let the children use the gate, the Board decided to close
it, forcing the children
to walk several miles to school instead of a few yards! Boards
are supposed to be concerned with the health and safety of its
members. Making
these kids walk miles instead of yards is a clear indication to
me of mixed up priorities on the part of this Board.
In fact, it sounds downright evil.
Most of the time gates and fences are used to keep the
bad guys out. In
this case, I think it keeps them locked in.
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