Live in a home governed by a condominium, co-op or homeowner’s association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: Our HOA has stated that we can only use a trainer that is affiliated with their chosen company. My wife has been using a trainer who worked for a previous company. She contracts directly through the trainer and wishes to continue training with this individual.
The management company threatened to have this individual removed from the property if my wife has him as her guest to train her. He is on our guest list, and he has never done anything to warrant a ban from our development. This seems to be a violation of my wife’s rights.
Is the HOA allowed to choose my wife’s friends or a vendor she uses that does not violate the physical aesthetics of our property? Signed, W.B.
Dear W.B.,
I think it’s unlikely that this is an issue addressed in your declaration of covenants. Instead, the association is presumably relying on its right to pass rules governing the use of the common areas.
If that right exists (which is likely), the question then becomes whether the association has passed a rule that is “reasonable.” Is the association addressing a legitimate association concern, and is the rule directly related to that concern? I can conceive of legitimate association concerns relating to vendors — if this person is training you in an association common area using association equipment there is a liability risk involved, and so the association could reasonably want to ensure that the trainer is properly insured or has signed appropriate waivers and indemnification agreements; and it could be that their chosen company has been properly vetted in this regard.
You talk about this person being a guest, but you wife is paying them — they are not actually a guest in the traditional sense, and I presume that they are not working for you on your property, but instead in the gym, or tennis court, or some other association area. So, this is not a clear situation where you might invite a social guest to exercise with you, but instead is a commercial transaction occurring on HOA property.
With that said, I can also think of reasons that the association’s concern might not be legitimate, for example if one or more board members had a personal relationship with their chosen vendor and wanted to benefit them by making sure they have no competition. It really comes down to the facts of the specific situation.
I think your best argument that the rule is unreasonable might be that the association’s legitimate concern (for example, relating to liability) can be easily resolved with rules that would allow any vendor to use the facility (for example requiring trainers to be insured, or requiring them to indemnify the association for injuries caused on its property); and that there is no direct relationship between mandating a single vendor and avoiding liability.
Ultimately, there’s no way to know for sure how this would go in court, but the first step is to see if you can figure out exactly why only one company is allowed to train people in the facility, and to work from there.
My condo board refuses to get windstorm insurance, now what?
Question: My condominium association is completely controlled by a board made up of employees of the rental company that owns 66% of the units.
For the last two years this board has declined to include windstorm coverage on our units. The owners at large were unaware of this significant change to their insurance. At the time they were not holding meetings and there were no minutes for owners to read. We have no recourse in restoring the coverage since we are always outvoted.
Consequently, all the community units are susceptible to wind and hail events. Mortgage companies will not approve loans on these properties. We are stuck! Is there a legal requirement that our association maintain windstorm coverage? Signed, B.C.
Dear B.C.,
In my opinion the association is obligated to carry windstorm insurance. There is no question that section 718.111, Fla. Stat. requires the association to carry adequate property insurance to protect the condominium property as originally installed, minus certain specific personal items.
The association is further obligated to perform all reconstruction work after a properly loss. The statute does not specify the exact types of property insurance that are required, but failing to protect the property against windstorms in Florida is a significant exclusion; and I would not want to be one of these board members when a storm hits, and they are sued personally for their reckless decision not to insure the property.
I would be worried that this is one of the rare times that might lead to personal liability on their part.
But if they don’t care, your best bet would be to join together with the other owners, hire an attorney, and ask a judge to declare that the statute in fact requires the association to carry windstorm insurance. I think that’s likely a winning argument.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living.” Email your questions to condocolumn@gmail.com. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Can condo ban my personal trainer, insist all use one company?