Q&A: Also: If someone owns multiple condos but rents all of them out to tenants, can they still use community amenities, such as tennis courts and the pool?
NAPLES, Fla. – Question: My homeowners’ association (HOA) is a gated community with private roads. We have recently had issues with speeding and other traffic-related incidents that would be violations of the Florida traffic code.
The board of directors has stated the association does not have to enforce the Florida traffic code. Is this correct? How are gated communities supposed to address common traffic infractions in their community? – T.K., Naples
Answer: Yes, your board of directors is correct when it says it is not responsible for the enforcement of traffic laws. I believe the traffic code you are referring to is Chapter 316 of the Florida Statutes, commonly referred to as the Florida Uniform Traffic Control Law. This is the source of most if not all traffic rules and violations in the State of Florida and requires enforcement of its various regulations by state and local agencies, not associations.
Most associations are not equipped to determine the exact speed of a moving vehicle, and therefore it would be difficult for the average board member or community manager to determine if someone is speeding through the community unless the person’s speed is so egregious as to leave no doubt that they are exceeding the posted speed limit. Additionally, while associations do have a variety of enforcement tools at their disposal to ensure compliance with the governing documents, associations lack the authority of law enforcement to force drivers to pull over or issue citations for violating traffic regulations.
As such, most associations focus on enforcing the governing documents of the association, which usually contain minimal traffic regulations, if any.
This is not to say that associations cannot take action if the board and community so desire. If there are existing restrictions, then the board of directors has a duty to enforce those restrictions. The association may levy reasonable fines or suspend the owner’s right to use the amenities of the association. In extreme cases, the association may seek an injunction against the offender to enforce the governing documents.
That aside, these steps can only be taken to enforce the restrictions and rules of the community, not the various provisions of the Florida Uniform Traffic Control Law. If the existing provisions of the governing documents and rules do not currently address the issues your community is experiencing, then the community may amend its governing documents to include additional traffic restrictions. Alternatively, Section 316.006, Florida Statutes, allows an HOA’s board of directors, by a majority vote, to elect to have state traffic laws enforced by local law enforcement agencies on the private roads that are controlled by the association. The association will need to contact their local law enforcement agency and make arraignments to facilitate access and other details necessary to allow law enforcement officials the ability to enforce traffic laws inside the community.
Question: Our association has an owner who owns several properties within the community and rents most if not all the properties to various renters. While the rental of the property is not an issue, the owner continues to use the association’s pool and tennis courts. Is the owner allowed to continue to use the amenities when they rent their property? – A.D., Fort Myers
Answer: This depends on what your association’s governing documents state. Many associations have a provision in their governing documents that states an owner’s right to use the association’s amenities is forfeit upon the renting of their property to a tenant. This type of restriction is commonly included to prevent the overtaxing of the association’s amenities.
If your association’s governing documents contain such a provision, then there is likely an issue with the owner continuing to use the association’s pool and tennis courts and the association would be within its rights to demand the owner stop using the amenities or be subject to enforcement action.
It is important to note that your question states the owner has multiple properties and that they rent most, if not all, of their properties located within the association. The prohibition would likely only be applicable if all the properties this particular owner holds title to are leased. Therefore, the board of directors must determine if the owner is currently renting all their properties, because if they continue to have a single property that is not being leased, then the owners likely have every right to continue using the pool and tennis courts.
I would recommend that the association have the matter reviewed by its legal counsel prior to taking any enforcement action.
Question: My HOA just signed a deal to get the entire community cable and internet service through the association for a group rate. The cable company wants to dig through my backyard to install their equipment and claims the association gave them the right to access my property.
This does not seem right as it is my property. Is this legal? – D.B., Bonita Springs
Answer: The answer is maybe. When associations are created, numerous easements are granted throughout the community to provide the association with the access rights necessary to manage the association properly. While there are many examples of this, the two most common are a utility easement that runs in the front of your property, so water, sewer, and electricity are provided to the lot and the other example is a lake maintenance easement that runs along the rear of lots that abut the various lakes and ponds in the community. These easements are shown on the plat for the community and recorded in the public records of the county where the association is located.
When an owner takes title to property located within an association, they are taking ownership of the property subject to these easements. These easements are usually described in more detail in the governing documents and associations generally have the right to enforce their rights to use the easements as they were originally intended. Additionally, governing documents will often include provisions that allow the association to create new easements throughout the community for certain purposes, such as providing bulk cable services.
Whether or not your community has the right to let a cable vendor install their equipment on your property without your permission will depend on if the association has an easement over that portion of your property for that purpose. If such an easement exists, then the association has the right and can generally confer that right to the cable vendor. If no such easement exists, then the association does not have the right to access your property for such a purpose and cannot confer a right it does not have to its cable vendor.
I suggest raising the issue with your board of directors and seeing if there is an easement over the rear of your lot before attempting to stop the cable vendor from laying their lines.
The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
© 2022 Journal Media Group. John C. Goede, Esq., is a shareholder of the law firm Goede, DeBoest & Cross.