Q: Does a condominium unit owner have the right to prohibit anyone from parking in his assigned parking space while he or she is residing in their northern home? (J.M., via e-mail)
A: It depends. If the parking space is designated by the declaration of condominium as a “limited common element,” the exclusive right of use is part of the unit’s property rights and cannot be usurped by other owners without your permission.
If the parking spaces are “general” common elements, and the board has adopted a parking plan that includes assignment of specific spaces to specific units, the board would have leeway under the case decisions to make reasonable modifications to the plan. For example, if there was a parking shortage, I think the board could allow spaces that are not being used to be used by those who need them, as long as it did not impair your right to have equal access to a space if you needed it.
Q: Our condominium association has a development order for a project that is set to expire in the next few months. Due to the coronavirus pandemic, the work is on hold. We have used up all of our extensions. Are we entitled to a development order extension due to delays posed by the coronavirus? (R.K., via e-mail)
A: According to my partner, Kathleen O. Berkey, who is a Florida Bar Board Certified Attorney in City, County, and Local Government Law, there may be an avenue to extend your development order due to the COVID-19. Section 252.363(1)(a) of the Florida Statutes provides that certain qualifying permits and authorizations, including development orders issued by a local government, are eligible for an extension once certain states of emergency are declared for the length of time the declaration is in effect, plus an additional 6 months.
A request for the extension must be submitted to the authorizing governmental agency within 90 days of the expiration of the state of emergency. The statute was revised in 2019 pursuant to provide that extensions are only available where the state of emergency is issued for a “natural emergency.” While there has was some debate as to whether the current COVID-19 pandemic would fall under the definition of a “natural emergency,” the Florida Supreme Court affirmed Florida Governor Ron DeSantis’ emergency powers during the COVID-19 pandemic and ruled that the pandemic constitutes a “natural emergency” within the meaning of the state’s emergency management law.
Q: Our HOA board created a committee to propose regulations for the community, including the number of vehicles parked in driveways overnight. The board president is one of the residents who parks several vehicles in his driveway. The committee has recommended that any board member who has a conflict of interest should not vote on the proposed rule change. Is this a conflict of interest? (R.G., via e-mail)
A: While most governing documents grant the board the authority to adopt rules regarding the common areas, many do not extend this authority to the lots. The first question that needs to be resolved is whether the proposed regulation is within the board’s authority or requires a member vote.
The conflict of interest statute generally involves an association entering into a contract or other transaction with one of its directors or directors receiving an improper personal benefit. While directors owe a fiduciary duty to the members, I do not believe this means that a director loses the right to allow their personal opinions on governance, even if based on their own lifestyle and actions, to be expressed. In reality, every person’s personal preferences play a role in deciding what kind of use restriction changes are desirable, and those which are not.
If a restriction is properly enacted, then the president would need to adhere to it along with everyone else. If he did not, then I do think he would have a conflict as to any vote to take action against him to enforce the restriction.