Becker & Poliakoff

“Backyard Clothesline Causes Flap” – News-Press

“Backyard Clothesline Causes Flap” – News-Press

Becker & PoliakoffQ: There is an ongoing dispute in my homeowners’ association concerning the installation of clotheslines that we are hoping you can resolve. Some owners have stated that they are entitled to install clotheslines on their lots without regulation by the association. The board of directors has stated that while clotheslines may be installed, they may only be installed consistent with the board’s rule on clotheslines which states that they must be installed at the rear of the lot behind the homes. Who is correct? (E.E., via e-mail)

A: The language of your community’s governing documents would control. If the declaration of covenants does not address the issue specifically, they must give the board sufficiently wide latitude to make rules governing the use of the lots. Further, any rule enacted by the board must be reasonable. A requirement for placement of clotheslines out of general public view does not seem inherently unreasonable to me, though I am aware of no case authorities on point.

You should also be aware that Section 163.04 of the Florida Statutes, which is intended to promote energy conservation, states that a covenant may not prohibit solar collectors, clotheslines, or other energy devices based on renewable resources from being “installed on buildings erected on the lots or parcels.”

While the statute on a limited basis permits an association to specify the location of solar collectors, it does not discuss the authority of associations to specify the installation location of other energy conservation installations, such as clotheslines. The statute on its face only addresses installations “on buildings,” but does not otherwise address freestanding clotheslines or clotheslines that might be fastened to the home at one end and a pole or tree at the other end. How a court would apply the law to these types of hybrid situations is an open question as far as case precedent.

Further, there may be an argument that the statute does not apply to some associations. The statute was originally adopted in 1980 and at that time only applied to governmental entities, such as cities or counties. However, in 1992 the statute was amended to include “deed restrictions, covenants, or binding agreements.” The statute has subsequently been interpreted by the courts to apply to community associations. However, if an association’s documents prohibited clotheslines prior to 1992, arguably the statute cannot retroactively apply to such restrictions. Again, this is an open legal question.

Based on the current language of the statute, and depending on the language of your governing documents (and confirmation that the restriction was properly enacted) it is my view that the association would most likely be able to enforce its rules concerning the installation of freestanding clotheslines on the lots, and a requirement that they be installed at the rear of the lots.

Q: My homeowners’ association is still controlled by the developer. Can the developer-controlled board of directors make rules without a vote of the owners? (R.D., via e-mail)

A: Maybe. In general, the board of directors, whether it is still developer-controlled or it has been turned over to the owners, has the same powers and duties. There are a few exceptions. For example, under Section 720.315 of the Florida Homeowners’ Association Act, a developer-controlled board cannot levy a special assessment unless it is approved by a vote of the members. There are no restrictions in the statute on rules and regulations.
Rules adopted by the board must be predicated on a sufficient grant of authority in the superior governing documents. The vast majority of governing documents give the board rulemaking authority over the common areas. It is far less common to see the authority for the board to have authority to adopt rules regarding the lots/homes, though that is the trend in modern documents and almost all HOA governing documents confer some level of architectural authority on the board (or a committee), which often requires supplemental rules to properly implement.