“New HOA Laws on Vehicle Parking Questioned” – News-Press

Q: Can you comment on the new laws that apply to homeowners’ associations regarding parking vehicles in driveways? Does this law include boat trailers? (H B., via e-mail)

A: This is an issue that has gotten a fair amount of attention recently but is not easy to answer or explain.

The basic issue you raise involves a series of recent amendments to Chapter 720 of the Florida Statutes, known as the Florida Homeowners’ Association Act. I will refer to this statute as “the Act.”

The Act was amended in 2023, and again in 2024, to add a new Section 720.3045. This new law states that regardless of any covenant or rule to the contrary, an association cannot restrict an owner from “storing any items” on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, an adjacent common area, or a community golf course. Examples of such “items” specifically listed in the statute are artificial turf, boats, flags, vegetable gardens, clotheslines, and recreational vehicles.

The Act was also amended in 2024 to add a new Section 720.3075(3)(d). This law states that a declaration or covenants or other governing documents of a homeowners’ association may not preclude an owner, tenant or guest, from parking their “personal vehicle” in the driveway or other area where parking is not precluded by law. Pickup trucks are specifically included within the ambit of “personal vehicles.”

The same statute goes on to provide that the governing documents may not prohibit an owner, tenant, or guest from parking a “work vehicle” in the driveway, regardless of any “official insignia or visible designation,” as long as the vehicle is not a “commercial vehicle” as defined in the relevant statute.

That’s the easy part. The tricky question becomes how these laws apply, if at all, to existing associations. This involves the application of a complex body of Florida appeals court decisions, some of which are inconsistent, and all of which are intellectually challenging.

The starting point is whether the Legislature intended the law to apply retroactively. If not, that ends the matter, and the law does not apply. The presumption in the case law is that legislation is intended to be prospective (not retroactive) in nature, unless otherwise expressly provided.

If a court concludes that the law was intended to be retroactive, then a second level of yet more complicated legal issues come into play, the so-called “impairment of contract” issue. Simply stated, both the Florida and U.S. Constitutions prohibit legislatures from adopting laws that impair contract rights. Under fairly well-established case law, the provisions of an HOA declaration of covenants would be considered contractual rights.

Then, you must consider the exceptions that the law has created. First, if the governing documents of the association incorporate future amendments to the statute, the courts have held that changes to the statute will apply. These provisions are often referred to as “Kaufman language,” based on a 1970’s Florida appeals court decision by that name.

If the governing documents do not contain Kaufman language, there is further distinction to be made when changes to the statutes are “procedural” or “remedial” (which generally apply retroactively) to those which are “substantive” (which do not). Even when “substantive” rights are involved, there is also case law that can apply a “balancing test” to determine if public policy mandates retroactive application.

So, there is no “one size fits all associations” answer to these questions. Each association should review this matter with its legal counsel and determine how to address issues that will inevitably arise. While I expect that these issues will be clarified by future appeals court rulings, it will likely be years before that happens.

As to boat trailers, the new “driveway parking statute” only applies to “personal vehicles” and “work vehicles” and would not apply to boats or boat trailers. The “storage statute,” if found to be applicable to any individual community, specifically applies to boats and likely applies to boat trailers.

Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.