Resident cruises property in unmarked car, with camera looking for HOA rules scofflaws

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. 

Editor's note: While Ryan Poliakoff takes time off for the holidays, we are re-running these items from columns written in 2021 and 2022.

Question: I live in a community governed by an HOA, and our board has appointed a resident volunteer to make rounds taking pictures and reporting potential violations to management, who then decides whether to issue citations and fines. This individual uses a private unmarked car and as a result is not liked by fellow residents. Is this an acceptable practice and is it wise to pit neighbor against neighbor? Signed, D.S.

Dear D.S.,It's "acceptable" in the sense that it's legal, but I'm not sure it's the best practice. Effectively, your community has appointed a resident as a compliance officer to snoop on and report on their neighbors. Inherently, that person is going to be rejected and unliked.

Why would you want to be that person? I will say, however, some people actually like to be the neighborhood police! This is where the entire concept of a "condo commando" comes into being. I just don't see why any individual should be put in that position if you can avoid it, particularly if there is a management company that has been hired to assist with rules enforcement.

When I was in HOA property management, part of our regular duties was driving through and inspecting communities for violations. Usually, the most efficient way to do this is to look for certain key violations en masse — for example, one month we might do all of the roof inspections, and another month we might do all of the landscaping inspections.

Rules need to be followed; that is one of the primary purposes of having an HOA. And there are some aspects of rules enforcement that inherently involve neighbors judging neighbors (for example, the board itself that promulgates fines, or the independent committee that decides whether those fines go into effect). But whenever you can task a totally independent employee of the association with compliance issues, I personally consider that the best practice.

Question: My condominium unit does not have deeded parking, but instead I am assigned a parking space by the board. The building is an older four-story, L-shaped building with open air parking in front and in the rear courtyard. My assigned space is the farthest space possible from my unit.

When I inquired about changing spaces, I was told a past board president reassigned the parking spaces prior to my purchase to accommodate her preferences. The current board has no interest in reassigning the spaces.

Is there any law that requires assigned spaces to be a certain distance from the unit itself? Signed, M.K.

Dear M.K.,Unfortunately, there is no law that would require the board to give you a parking space that is within a certain distance from your unit.

While most condominiums have assigned appurtenant parking spaces, yours is in the minority where all parking spaces are common elements to be assigned to residents at will. You could try to argue that the board's assignment of spaces was unreasonable, particularly if they expressly favored their friends over yourself. But I think that will be a very hard argument to prove.

Your only other recourse would be, if you were disabled, to demand the association accommodate your disability by moving you to a closer parking space. Of course, you would need to verify this disability, usually with a letter from your doctor asserting that you have a disability that affects your mobility and that a closer parking space is necessary to afford you the full use and enjoyment of your unit. In this instance (and given that the spaces are not appurtenant to specific units) the board would be obligated to rearrange the spaces to provide you with a closer space.

I mention this not to encourage you to manufacture a disability, but only to point out this right, as many people are unaware that the rules requiring accommodations (such as allowing emotional support animals in no-pet buildings) also applies to things like parking.

Question: Can a board member be on the board or run for election if he or she has a violation that hasn't been addressed? Signed, F.J.

Dear F.J.,Yes. Violating the rules does not disqualify someone from being on the board. All owners are eligible to be candidates for the board and to serve on the board unless they fit in certain categories expressly described in the Condo, HOA or Co-Op Acts, such as being delinquent or being felons whose civil rights have not been restored.

If your governing documents expressly stated that a person with an open violation could not serve on the board, you might have some argument that covenant or rule could bar someone from serving -- but consider for a moment how easy it would be to abuse a rule like that.

A board could simply tag an owner they don't like with a fake violation to keep them off the board. They would never even have to pursue a fine or sue the person to enforce compliance with the rules -- they would simply assert that the person was a rule violator, and then they could never serve on the board. I know of boards where a director was actively suing its association, and that was not illegal either.

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: Is it legal to name resident as homeowner association rule enforcer?