Can we ban the commercial vehicles that are 'junking up' the neighborhood?

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers. 

Question: Can I get a clear definition of what a commercial vehicle is so that we can keep them from "junking up" our neighborhood? Signed, W.B.

Dear W.B.,

If you don’t know what a commercial vehicle is, how do you know that they are junking up your neighborhood?

There is no set legal definition of a commercial vehicle. I always consider a commercial vehicle to be one used for business purposes, rather than personal purposes. But so many of our vehicles are used for both. I drive my car to and from board meetings — does that make it a commercial vehicle? Or, what if a person has an at-home business and puts the name of the business across their back window, or on their license plate. Is that now a commercial vehicle? What if a person drives a van, and they use that van for both business and personal transportation?

I am assuming that your covenants or rules prohibit commercial vehicles and that you are looking for a way to enforce that provision.

I will tell you that I do not like bans like this (or truck bans) because they are not narrowly tailored to achieve the association’s goals, and they’re extremely difficult to enforce. Instead, what is the issue you are trying to solve? Are you trying to prevent vehicles that are in disrepair? Then amend your documents or pass a rule prohibiting vehicles that are in disrepair. Are you concerned about trucks full of equipment? Then ban visible equipment in the back of trucks. Does signage on a vehicle, by itself, offend the community? Then restrict the signage. I always recommend addressing the actual concern at hand, rather than trying to create a rule that attempts to address all issues at once, but without any specificity. They don’t work.

If, however, you have existing language prohibiting commercial vehicles without further definition, and if you have no ability to amend that provision and to address the community’s specific concerns, I recommend that the board resolve to interpret the term in a specific and consistent way that addresses the apparent intent of the drafters of the document.

It could be defining commercial vehicles as those with commercial signage (even if just a wrap advertising a home business); it could be vehicles that are used exclusively for business purposes, but excluding dual-use vehicles; it could be vehicles that are used for business purposes, whether partially or entirely (understanding this could reasonably pull in other vehicles you have no desire to ban); etc. Since you describe these vehicles as “junking up” your neighborhood you presumably know exactly the kind of vehicles that you are concerned about and can tailor a board resolution to address those vehicles, and no others.

But, with that said, I stand by my general recommendation to modify general provisions like these (and those include truck prohibitions as well) so that they address the community’s specific concerns, rather than simply banning an entire category of vehicle, many of which might not be offensive.

Can HOA charge me for renting out my cottage?

Question: I am an owner of a cottage unit within a community governed by an HOA. We purchased our unit with the express right to lease our unit short term. After a couple of years, the association created an annual fee for all owners who rent their units, whether once or several times a year. Are they allowed to just implement such a fee without a majority vote by the owners? Additionally, there has been no explanation of how the funds are being used.  Signed, C.T.

Dear C.T.,

I’m much more concerned with the collection of the fee itself, rather than the use of the funds collected. Assuming those funds are being used for legitimate association purposes, that’s not really the issue at hand.

Generally speaking a community association can charge only such fees as are described in the governing documents. Further, no board-made rule may contradict or limit a right described in the superior governing documents, such as the declaration of covenants.

If the declaration expressly states that you have the right to lease your unit, with no qualifications, I think it is likely that the rental fee you described would be found to be unenforceable. If the declaration instead says that rentals are allowed subject to the association’s reasonable rules and regulations, the rule has a much better chance. But remember that board-made rules must be reasonable, and so the board would have to demonstrate that the fee is intended to address some legitimate association interest (and simply earning income is not likely to pass muster).

Many association governing documents permit the association to charge an application fee, and it could be that your governing documents permit such a fee and that the board has couched the fee in that light — if so, that would likely be enforceable, as well.

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to condocolumn@gmail.com. Please be sure to include your location.

This article originally appeared on Palm Beach Post: Expert points to pitfalls in path to banning trucks, work vehicles