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Roberto C. Blanch has once again authored an article for the Daily Business Review, which is South Florida’s exclusive business daily and official court newspaper. The article, which appears in the Real Estate Special Report section in today’s edition and is titled “Can HOAs Flout New Florida Law Barring Pickup Truck Parking Bans?”, focuses on questions surrounding the application of a new Florida law barring pickup truck parking bans by HOAs. His article reads:
. . . Among all the changes, one new law particularly stands out: As of July 1, homeowners association governing documents may not preclude a property owner or their tenant, guest or invitee from parking their personal vehicles in the owner’s driveway or in any other area in which they have a right to park as governed by state, county and municipal regulations.
The new statutory language aims to protect the right of homeowners and residents to park personal vehicles in their driveways, regardless of any official insignia or visible designations indicating their commercial use. This includes pickup trucks or work vehicles that are not legally classified as commercial motor vehicles, which are defined elsewhere in the statutes as weighing in excess of 26,000 pounds or having three or more axles (e.g., semi-trucks and trailers).
This is a significant change because the governing documents of many homeowners associations throughout the state include provisions restricting the parking of vehicles on driveways, encouraging parking in closed garages, and prohibiting vehicles deemed to be for commercial use or exhibiting signage from being parked overnight within the community.
Critics of such restrictions call them overreaching and archaic, arguing they do not take into consideration the needs of residents whose only means of transportation is the vehicle they use for work. However, they also have their supporters who note that everyone who chose to purchase or reside in the community elected to do so after being made aware of all such rules that are aimed at maintaining the enclave’s aesthetic appeal and property values.
While the plain language of the new statute seems to leave HOAs with little choice but to enforce the provision, several communities with longstanding prohibitions against the overnight parking of pickup trucks and work vehicles have already been the subject of TV news reports focusing on how they claim to be exempt. A July 16 story by the Tampa Bay ABC affiliate (www.ABCActionNews.com) reported that residents of The Meadows in Sarasota, Florida, received an email from their HOA indicating “all current parking rules and regulations will remain the same.” Another segment later in the month from the Southwest Florida ABC station (www.ABC-7.com) indicated that the Calusa Lakes community in Nokomis, Florida, has also reached the same conclusion.
According to these reports, both of the associations in these cases have apparently been counseled by their attorneys that they do not need to adhere to the new law because they do not have what is known as the “Kaufman language” in their governing declarations. Those are provisions to automatically incorporate changes to Florida’s laws governing the applicable associations whenever they are amended by the legislature, and these associations contend that the application of the new law hinges on whether it is included in their documents. While many communities have such a provision in their declarations of covenants, there are also many that do not. Some new laws may not apply to HOAs whose declarations of covenants do not have the Kaufman language, as the state’s constitutional safeguards prohibit the legislature from adopting laws that infringe upon existing contractual rights previously established under HOA governing documents. In fact, while some communities have opted to amend their governing documents to incorporate the Kaufman language, others have amended them specifically to omit it in hopes of escaping legislative changes such as this one that have become more prevalent in recent years.
That said, community association stakeholders should be mindful that the absence of Kaufman language in governing documents will not enable them to escape all legislation enacted following the establishment of the community, as there are some exceptions to this general rule. This sort of legal analysis can become complex and varied depending on the specifics contained in association documents. . .
Roberto concludes his article by noting that given the particularly strong sentiments on both sides of the issue of parking restrictions against pickup trucks, work vehicles and RVs in HOAs, the matter could easily become the subject of highly contested and costly litigation, as the losing party will be on the hook for the prevailing party’s legal fees and costs. He advises board members and property managers in affected communities to familiarize themselves with the provisions of the new law and consult with qualified community association legal counsel to evaluate if and how it applies to any parking restrictions they may wish to keep in place.
Our firm salutes Roberto for sharing his insights into the questions surrounding the application of this new law for some Florida communities with the readers of the Daily Business Review. Click here to read the complete article in the newspaper’s website (registration required).