Age-old fencing for residents' dogs runs afoul of new homeowners association president

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: Our homeowner’s association states in its declaration that “all fences, other than those installed by the Developer, are prohibited."  Ten years ago, our then president allowed owners to install dog pens — pens made of chain link fence material. Last month, our current president became enraged when her neighbor constructed a dog pen within sight of the front of her home and caused a park-wide donnybrook resulting in the board's ordering all nine dog pens removed with very little notice; and with $1,000 penalties for those that are not disassembled within the time period provided.

We are all seniors and most of us have disabilities that limit our ability to walk our dogs. Even though dog pens have been ordered to be removed, white picket fences and white lattice barriers are allowed.

We explained to a fining committee that our dog pens are neither general nor legal fences according to FL Statute 588.011. What is your opinion?  Signed, M.G.

Dear M.G.,

I’m not sure that Section 588.011, Fla. Stat., is relevant here. What your governing documents consider a “fence” is not the same as what is considered a fence for livestock or horticultural purposes. The purpose of the statute is to help define what constitutes “legally enclosed land” such that a livestock owner can avoid liability caused by their livestock escaping their property.

Your governing documents, on the other hand, use the term colloquially. So, a fence can be lots of things, including the fence used for your dog runs, and including the white picket fences that are allowed to be erected around other homes.

There are two primary defenses that you and your neighbors might have. First, you have had your dog enclosures for many years — way longer than the statute of limitations for enforcing the covenant against you. Additionally, the association’s failure to act means that it has likely waived its right to enforce that covenant generally, even if a new owner were to install a dog pen. The association would have to republish the covenant if it wanted to start enforcing it in the future, at least as it would apply to these dog enclosures.

Second, and to the extent the association allows other types of fences, a good argument can be made that it is selectively enforcing the fence rule against some fences, and not others. It’s hard to understand how your dog pen is a “fence,” but a white picket fence is not. The board may have some rights to interpret the governing documents, but its interpretation needs to be reasonable. White picket fences are much more fences than your dog pen would ever be.

I think that your association would have a difficult time enforcing this rule against you in court. The problem is that they don’t need to go to court — they can either fine you or suspend your common element use rights to make your life difficult and encourage you to go along, even though they probably don’t have the legal power to force you to remove the pen.

You do have some leverage, in that there are many owners in the same position. I’d consider pooling your resources and hiring an attorney to start by sending the association a demand letter and taking legal action if needed.

Question: The current version of the HOA Act does not mention "Rules and Regulations" in the definition of "Governing Documents" Does this mean that they are no longer considered governing documents, or is this an omission? Following this stream of logic, are HOA architectural control specifications considered "Governing Documents"? And if neither are governing documents, where do they each fit in the hierarchy of HOA documents?  This question is important from and operational enforcement perspective. Signed, L.L.

Dear L.L.,

Several years ago, the HOA Act was amended to add “Rules and Regulations” to the list of defined “Governing Documents.” Unfortunately, this had unintended consequences.

Among other things, it meant that amendments to rules and regulations needed to be recorded in the public records, as the statute says that all amendments to the governing documents must be recorded. That was never the case prior, nor was it the intent of the amendment, and it created a lot of additional legal work because every time the association amended even a minor board-made rule, a certificate of amendment needed to be prepared, and the new rule needed to be publicly recorded.

Thankfully, a couple of years ago this glitch was corrected by removing rules from the definition; and so now, as it was always before and likely intended to be, amendments to rules (and that includes architectural controls) are no longer “Rules and Regulations” for statutory purposes and they do not need to be recorded in the public records (unless, of course, your own governing documents require that to be the case). Even for those rules that were recorded during the brief period of time that was required, I do not think further amendments to those rules would need to be recorded today.

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: HOA advice: Dog owners push pack on order to remove fencing, fines