What’s New in Rules and Restrictions?

Community associations across the country are weighing amendments to their governing documents. While the initial impetus may have been some problematic gaps that handcuffed boards of directors as they tried to respond to COVID-19, these associations realize this also may be an opportune time to act on other issues that have been percolating for a while.

The amendment process, after all, often is expensive and challenging — in no small part because of the difficulty of achieving the necessary quorum at meetings. But the increase in virtual meetings due to the pandemic has resulted in higher attendance in many associations, easing the burden. This has prompted some associations to try to deal with additional concerns at the same time they tackle issues raised by the pandemic.

Potential Amendments

The amendments under consideration touch on a range of topics and can, of course, vary by geographic region. Here’s a sampling of areas that our sources report working on with their association clients:

Surveillance cameras. The use of inexpensive Internet-connected surveillance cameras has surged in recent years. The jump in the volume of home deliveries — and, in turn, so-called “porch bandits” — this year has only enhanced the popularity of the devices.

In some areas, boards have paid little attention. “Our clients that have policies say the cameras can’t observe more than their own property, but most don’t have policies,” says Marc Markel, a shareholder in the Texas-based law firm Roberts Markel, Weinberg Butler Hailey PC.

In Florida, though, Jennifer Horan, a shareholder in the Naples, Fla., office of Becker & Poliakoff, has seen a different story play out. “The Ring doorbell has been a huge issue because the span [of the captured images] is so far that they can really see everything. Especially in connected homes, where you may share a driveway, people are asking how this isn’t an invasion of privacy.”

As a result, some clients have asked her to draft restrictions against the installation of any type of surveillance doorbell that can see someone else’s property. “Others have narrowed it down to say it could be used as a camera but can’t pick up sound,” she says.

Short-term rentals. “Short-term rentals seem to be the persistent issue,” says Dan Artaev, a Detroit area attorney who has represented homeowners associations throughout Michigan. “We have a lot of vacationers and second homes here.”

It’s not just the owners pushing back against existing attempts to curtail short-term rentals — it’s also the companies that facilitate the arrangements. And the arguments in favor of such activities continue to shift, meaning associations may have to adjust.

“One of the updates we’ve put in [governing documents] is a more explicit rental restriction because owners will hire attorneys and say Airbnb is a licensing arrangement, not a rental,” says Kevin Hirzel, managing member of Hirzel Law, PLC, a Michigan-based firm that works with community associations.

Signs and flags. Signage and flags can cause conflicts anytime, but, in the midst of heated national elections and civil unrest, they may move to the forefront. “With Black Lives Matter, Blue Lives Matter, and political signs, this is a big issue right now,” Hirzel says. “We’ve had to litigate issues before where people try to modify the American flag, which is permitted, to put a political message on it.”

Hirzel says every association is a little different in how they approach the issue: “Some want to be more lenient on the restrictions because they don’t want to end up on the news. We’ve had others go to court to get an injunction to get things taken down.”

Vague terminology. Ambiguously or broadly defined terms — or undefined terms — can lead to litigation, so it’s always advisable to clarify when possible. “Ambiguity breeds lawsuits,” Artaev says. “And lawsuits are expensive.”

Brad van Rooyen, president of HomeRiver Group-Florida, which manages about 120 associations in the state, has clients that are doing just that right now because they want to leave no doubt that golf carts are allowed in their communities. “There are golf carts that are electrical vehicles and could qualify as recreational vehicles,” he explains.

“A couple associations are amending their documents to specifically clarify what is a prohibited ‘recreational vehicle,’ i.e., a four-wheeler, and to exclude electric vehicles like golf carts from the definition. Most of the community has no problem with golf carts, but, from an insurance and document enforcement standpoint, if the documents seem to prohibit them, and something happens, the association is likely liable.”

Similarly, Artaev has clients that want to adopt better definitions of the types of “structures” that require construction approval from the HOA.

“I had an issue where a neighbor built an outdoor basketball court without approval,” he says. “It wasn’t clear whether it fell into ‘structures’ like a deck or a shed. The same neighbor put up a net to prevent basketballs from rolling onto adjacent property, and the HOA told him to take it down because it considered a net the same as a fence.”

Watch for Overstepping Boards

Artaev cautions that boards must recognize the limits of their authority when it comes to adopting new rules and restrictions. “The biggest mistake I see boards make is that they assume they’re all-powerful. They’re not.

“Boards need to be aware of the process by which they can amend restrictions. I’ve run into boards simply assuming that because they’re elected, they can change deed restrictions by a simple board vote. I’ve yet to see a deed restriction that would give a board that type of power.”

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