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AMEND TO YOUR HEART'S CONTENT
By
Eric Glazer, Esq.
Published September 16, 2019
I have often been asked if an association has
the right to prevent an owner from smoking in their unit.
Certainly, all of you are aware that the association can prevent
a unit owner's behavior from becoming a nuisance or source of
annoyance to other unit owners. Every declaration contains a
nuisance provision. If the association can prove that the smell
of the smoke is creating a nuisance or that the smoke is causing
physical damage to another unit or the common areas, the
association would be entitled to an injunction. Often times
however, proving a nuisance is difficult. How do you prove to a
court how bad something smells? Rest assured the defendant will
present witnesses in court saying that there is no terrible
smell. So what's a judge to do?
Can the association's board of directors pass
a "rule" that prevents smoking in a unit? Probably not, as the
Board's rulemaking authority normally extends only to use of the
common areas. There's more than one way to skin a cat however.
Suppose the unit owners in the condominium wanted to amend their
declaration to preclude smoking in the condominium units? Would
that work? I certainly think so.
In Woodside Village Condominium
Association, Inc. v. Jahren 806 So.2d 452 (Fla. 2002) The
Florida Supreme Court heard the story of a unit owner who owned
4 units in a condominium and who basically lost the ability to
rent those units because the unit owners voted to amend their
declaration of condominium to only allow a unit to be rented for
only 9 months in a 12 month period. Mr. Jahren sued the
association alleging that the amendment was illegal. The
Florida Supreme Court ruled however that the amendment was not
illegal. In fact, The Supreme Court made it clear that there
are very few restrictions found in the Florida Condominium Act
when it comes to amending the declaration and that these are
found in 718.110. For example, pursuant to subsections (4) and
(8), all unit owners must consent to amendments which materially
alter or modify the size, configuration or appurtenances to the
unit, change the percentage by which the unit owner shares the
common expenses and owns the common surplus of the condominium,
or permit timeshare estates to be created in any unit of the
condominium, unless otherwise provided in the declaration as
originally recorded.
Moreover, The Florida Supreme Court found
that Mr. Jahren was always on notice that the declaration could
be amended and that this particular amendment does not violate
public policy or his constitutional rights.
Finally, the court opined that these type of
restrictions imposed by the amendment to the declaration
"simply come with the unique territory of condominium ownership.
Indeed, it is restrictions such as these that distinguish
condominium living from rental apartments or single-family
residences. Hence, persons acquiring units in condominiums are
on constructive notice of the extensive restrictions that go
with this unique, and some would say, restrictive, form of
residential property ownership and living."
There certainly is no constitutional right to
smoke in your home. There also isn't any provision of the
Florida Statutes which would prevent unit owners from amending
their declaration to prevent smoking in units. So again, I say
it can be done. In fact, as The Florida Supreme Court says,
unless a unit owner can prove that an amendment violates the
current statute, his constitutional rights, or some public
policy, the right of the members to amend their declaration is
certainly far and wide. Now, good luck getting a super majority
of owners in your community to agree on anything. But, if you
do, a court will likely not stand in your way.
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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 Associates, 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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