Risky Business

May I Install Hurricane Shutters? A Loaded Question for Condominium Association Boards

By Martin Salcedo, Esq.
Setnor Byer Insurance & Risk

In the State of Florida, what right does a condominium board have to prohibit a unit owner from installing hurricane shutters?

When determining a condominium board’s right to limit or otherwise restrict a unit owner from undertaking a specific activity, the usual starting place is the condominium’s documents, such as the declaration or the bylaws. This is because condominium associations are generally left to their own devices when it comes to directing the manner in which they govern themselves. However, in the context of installing hurricane shutters, the Florida legislature believed legislative intervention was necessary.

By virtue of their location, condominium communities may be susceptible to various risks that may not exist in other geographic areas. In Florida, it is the risk of hurricanes that ordinarily take center stage.

Florida’s expansive coastline is reason enough to place hurricane damage at the top of the list of risk exposures. The extensive, and ever increasing, residential development along the coast serves to increase the concern. Moreover, the reluctance of an already diminished pool of insurance companies to sell affordable wind insurance policies to coastal residents without hurricane shutters, as well as the increasing difficulty experienced by many unit owners seeking board approval to install hurricane shutters, underscored the need for legislation.

Thus, in the context of hurricane shutter installation, Florida’s Condominium Act (the body of statutes governing Florida condominiums), rather than a condominium’s documents, controls the process.

Specifically, the Condominium Act requires each condominium board to adopt hurricane shutter specifications for each building, which shall include “color, style, and other factors deemed relevant by the board.” Moreover, the Act provides that notwithstanding any provisions to the contrary in a condominium’s documents, “if approval is required by the documents, a board shall not refuse to approve the installation of hurricane shutters by a unit owner conforming to the specifications adopted by the board.”

By implementing an express policy, and requiring adherence thereto, condominium boards are unable to rely on arbitrary, inconsistent, or unknown standards when considering a request to install hurricane shutters, thereby removing unreasonable obstacles often encountered by unit owners seeking to protect their property from potentially devastating hurricane losses.

In addition to protecting a unit owner’s right to install hurricane shutters, the Condominium Act also protects unit owners from being double-billed in the event they choose to protect their unit from hurricane damage. Thus, if a condominium association decides to install hurricane shutters for the entire community, the cost of which is to be borne by the entire community via an assessment, then those who have previously installed their own hurricane protection shall receive a credit equal to the pro rata portion of the assessed installation cost assigned to each unit. Without such a credit, unit owners would essentially be charged twice for electing to install hurricane shutters on their own.

Clearly, the State of Florida has a vested interest in reducing the risk of damage caused by hurricanes. Protecting the rights of unit owners to install their own hurricane shutters, and eliminating the potential financial penalties that such owners were previously susceptible to, ensures the State’s interests are protected in this regard.

And, since the legislature made protecting these rights a priority, prudence demands that condominium boards do the same. Any board decision denying a unit owner’s request to install hurricane shutters should be viewed cautiously. Otherwise, the board may find itself on the wrong side of a lawsuit.

To learn more about unit owners' rights and condominium boards' obligations, check out our catalog of State of Florida approved Condominium Management courses.

Condominium Boards Going Red Over Unit Owners Going Green

By: Martin Salcedo, Esq.
Setnor Byer Insurance & Risk

Did you know that the earth receives more energy from the sun in one hour than the world uses in an entire year? In the past, such a fact was considered trivial. Today, however, it is fueling (pardon the pun) the Going Green movement that has found prominence in local and national political debates and news productions. The need to decrease our dependence on oil and increase our use of renewable energy resources is highlighted by concerns over global warming, turmoil in oil-producing regions, and the recent memory of paying more than $4 per gallon of gasoline.

Although polling suggests that the green movement is increasing in popularity and that many are doing what they can to reduce their carbon footprint, those trying to harness the power of the sun in their condominium communities have been encountering significant resistance from their condominium association boards. This is reflected by the increasing number of disputes involving unit owners attempting to install solar energy devices. Given the popularity of going green, those who are perceived as obstacles to the movement are achieving unwanted notoriety.

Ordinarily, condominium boards opposing the installation of solar collectors or other energy devices based on renewable energy resources are enforcing restrictions found in the condominium documents (e.g., bylaws, declarations, etc.) that prohibit such installation. Others are ostensibly protecting the appearance or theme of the condominium community by preventing the installation of unattractive or obtrusive devices, regardless of their benefit. However, notwithstanding motivation, legislative mandates are significantly restricting a condominium board’s ability to prohibit the installation of solar collectors or other renewable energy devices.

In Florida, for example, a deed restriction, covenant, declaration, or similar binding agreement may not prohibit solar collectors or other energy devices based on renewable resources from being installed on buildings. In Arizona, an association cannot prohibit the installation or use of a solar energy device regardless of what the community documents provide. Maryland prohibits unreasonable limitations on the installation of solar collectors.

These laws represent a trend toward the protection of a landowner’s right, including a condominium unit owner’s right, to install solar collectors or other energy saving devices on their property. Their rights, however, are not absolute in that these laws typically allow for some restrictions on the installation of such devices.

Thus, while a Florida unit owner may not be denied permission to install solar collectors or other energy devices within the boundaries of a condominium unit, the board may determine the specific location where solar collectors may be installed on the roof. Similarly, in Arizona, an association may adopt reasonable rules regarding the placement of the solar device.

However, it is important to note that these laws typically provide that any such restrictions cannot impair the effectiveness of the device. In practice, this means that a board may not force a unit owner to place the device in a shady area, have the device face the wrong direction, or paint the device to match the community’s appearance, because these efforts may reduce the device’s effectiveness.

Needless to say, handling a request for permission to install a solar collector, or some other device based on a renewable resource, can be perilous. The stakes are significantly increased by the fact that laws protecting the right to install such devices typically allow the prevailing party to recover attorney’s fees in the event litigation arises.

The likelihood of encountering a request for permission to install a solar collector or some other renewable energy device is increasing with every government rebate and tax credit available for those electing to go green. Since improperly handling such a request can have damaging consequences, a board should seek professional advice before taking any action on the request, regardless of what the condominium documents provide. If a request is illegally denied, the board will be left red in the face while the unit owner goes green.

If you would like to learn more about your obligations as a condominium board member, check out our condominium training which has been approved by the State of Florida.