HOA threatens fine if owner doesn't remove tiles it approved 15 years ago. Is that legal?

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 the board of directors of an HOA limit discussion or questions from an owner to three minutes or less, after the board discusses issues and offers time for questions? Signed, G.L.

Dear G.L., Both the Condominium and HOA Acts provide that the board may make reasonable rules concerning the frequency, duration and manner of unit owner statements at board and membership meetings. Rules limiting speaking time to only a few minutes per topic are extremely common and entirely legal.

I think it’s questionable for a board to limit owner comments on all topics until the very end of the meeting (at which point the board has already voted on every topic, and so the comments would be meaningless); but I have no problem with the board giving owners a limited amount of time to speak to the issues on the agenda, and in fact I recommend this to all of my clients.

Think of it as a matter of practicality — if you had 10 people attend a meeting (and most meetings would have far more), and if every person wanted to speak to every item on the agenda, each agenda item would take a minimum of a half hour to discuss even if you limit owner comments to three minutes. The meetings would never end. Frankly, I think an association could get away with an even shorter timeframe.

I don’t know if a board could limit an owner to two or three minutes to discuss all agenda items, collectively, but certainly three minutes would be an appropriate limit for each item.

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Question: I have lived in my condo for 17 years and now the board is requiring me to remove tiles from the floor on my lanai.

I had the work approved 15 years ago! The board is going to impose fines on me if I don’t remove them, and they’re also going to prevent me from selling my unit. I can’t afford to pay $1,000 to remove the tile. Please let me know if I have to comply with this. Signed, P.D.

Dear P.D., Generally speaking, an association cannot retroactively enforce covenants or rules. I do think the board could prevent you from replacing the existing tiles if they needed to be removed (for example, due to concrete restoration work), but I don’t think they would be successful in forcing you to remove the tiles for no reason, even if they were to amend the declaration to prohibit them.

This is no different than a pet-friendly building amending its governing documents to prohibit pets — the existing pets would be grandfathered, but they could not be replaced. The problem, as is regularly the case, is that the only way for you to prevent the association from fining you or suspending your use rights, or from preventing you from selling your unit, would be to take them to court, which could get extremely expensive.

I do think that the board would have more success in requiring a new owner to remove the tiles if and when you sell your unit. I think that a new owner who had not relied on the right to install the tiles would have a far weaker argument that they had a right to keep the tiles despite the rule change. So, this could end up affecting the sale of your unit, even if the association could not prohibit the sale, outright.

Question: I live in a community governed by an HOA. The common ground and lakes within our community were platted to the Water Management District. The HOA uses the land that was platted to the Water Management District for a few social events each year. The HOA has an insurance policy and an umbrella policy that covers these Water Management District parcels. Is it legal for the association to use these parcels and, in the event someone gets hurt, would the HOA be liable? Signed, B.V.

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Dear B.V., It entirely depends on the description of the use of such lands in the plat and/or in your declaration of covenants. However, if all of your common grounds are platted to the Water Management District, I seriously doubt that the HOA would be prohibited from using them.

Usually, the HOA is responsible to maintain such lands but also has a right to use the lands for proper common purposes, which might include social events. I don’t know that you need to ask permission of the Water Management District, but you should at least ask your attorney to review the relevant documents and provide the association with a legal opinion to cover your bases.

I’m not particularly concerned with liability because you’ve said the property is properly insured — the HOA should just make sure that insurance covers all use of the properties, including recreational uses. Frankly, the liability risk of someone drowning in a lake outside of a party is a lot greater than the risk of someone twisting their ankle while dancing at a party.

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 expert advice: Can board force owner to remove approved tiles?