Wednesday, January 11, 2012

Hurricane Shutter Question

Question received by email:
I am on the board of our HOA. Due to recent media coverage, we are receiving inquiries on the duration a house may leave their Hurricane Shutters closed.

As some of our neighbors are seasonal, we have seen that their shutters remain closed during the off-season, thus mostly all summer.

At present, our covenants do not contain requirements for shutter mounting or dismounting outside of imminent storms.

What is the current Florida law on Shutter's remaining mounted outside of approaching storms, if any, and the ability for an HOA to stipulate when they may be mounted and must be removed.

Also, is there any pending legislation on the horizon to this effect?

AK, Palm Beach Gardens, FL



Response:



There is currently no legislation governing hurricane shutters in the Homeowner Association Act, Fla. Stat. 720.  The Condominium Act, Fla. Stat. 718, has provisions, but nothing addresses duration.  There is currently no proposed legislation that would address the duration issue.

Since hurricane season starts June 1st and goes through the month of November, closed hurricane shutters are an issue for a large number of associations who have part-time residents from the North.  The association can make reasonable rules and regulations to address issues with the repair and maintenance of property if the declarations provide for an architectural review board or committee to approve changes.  Enforcement of that rule is the tricky part because an association can only engage in conduct authorized by the governing documents.  An association cannot fine an owner unless fines are provided for in the declarations.  If no fines are provided for the association would need to bring an action in court for an injunction to force compliance, which is expensive with no guarantee the injunction would be granted.  A judge will determine if the rule is reasonable, and most likely will find it reasonable.

If the declarations do provide for fines, then the procedures outlined for notice and a hearing before a 3-member committee must be adhered to before the committee can impose a fine.  A board of directors cannot impose fines.

Keep in mind that any meeting in which changes to the rules regulating parcel use are going to be discussed requires notice be mailed to each owner at least 14 days in advance with a statement describing the discussion and a sign must be posted in the community at least 14 days in advance also announcing the discussion.

My suggestion is to find a creative way to solve the problem without attorneys whenever possible.  Once lawyers become involved your community usually becomes embroiled in turmoil because owners become defensive.  Establish the rule and then maybe a committee could contact the owners of the seasonal residents to make sure they are aware of the rule and ask them if they have anyone local who could install and remove the shutters as storms approach.  I’ve found the best approach is not only identifying a problem and providing a solution, but looking past the solution to possible problems that will result from the solution and have a plan to address those issues.