Mr. and Mrs. Thomas live in a two-story townhouse-style condominium. They asked their condominium association board of directors for permission to install several indirect ground lights to illuminate the area in front of their unit at night, including the walkway from the parking lot. Citing a condominium rule that prohibited owners from installing any items on common property, including “lights” and “other objects”, the board denied the request. Is the owner out of luck?
“Common property” includes the land that is not within the condominium units. The land in front of the unit was clearly common property. The Florida Condominium Act provides the board of directors with rule-making authority governing the operation and use of the common elements, and allows for restrictions on the use, maintenance and appearance of the units and the use of the common elements. Thus, the board clearly had authority to make a rule concerning the use of the land in front of the unit.
To be valid and enforceable, a rule or regulation adopted by the board (as opposed to a restriction contained in the declaration of condominium) must meet a two-tier test. First, it must be within the scope of authority of the board. Second, it must be reasonable and not arbitrary or capricious. To be within the scope of the board’s authority, it must not contravene an express provision of the declaration or a right reasonably inferred from the declaration. If the rules and regulations are uniform in their application and enforcement and are reasonably related to promoting the health, safety and welfare of the unit owners, then it meets the second test.
In the Thomas’s case, the rule did not contravene an express provision in the declaration or a right reasonably inferred from it. However, whether the rule against lights is reasonable and not arbitrary or capricious is very debatable. What interest is the association protecting by prohibiting the lights? A blanket prohibition against such outdoor lighting is probably difficult to justify. The electricity service for the lights can be tied to the owner’s service, so the association would not incur any expense. A few small walkway lights will not likely affect the association’s insurance premiums. On the other hand, the unit owner’s personal safety is clearly a legitimate reason for installing the lights. The reasons for installing lights would appear to outweigh any reason the association could offer to oppose the lights. Therefore, the rule seems unreasonable, arbitrary and capricious when applied to such lighting.
If the association amended its rule to delete the prohibition against outdoor lighting, it could adopt a uniform policy requiring lighting to be of a certain type, limited to certain specifications, such as height and intensity, and other reasonable limitations to ensure a uniform and aesthetically pleasing appearance. Indeed, in the foregoing actual situation, and based upon the explanation offered above by Michael E. Rehr, the association amended its rule and adopted new guidelines to allow outdoor lighting of a specified type.
Board members and unit owners alike must always consider the reasons why rules exist, and in each situation, whether enforcement of the rule serves any legitimate association interest.
DISCLAIMER: THE FOREGOING ARTICLE IS NOT LEGAL ADVICE AND IS FOR INFORMATION PURPOSES ONLY. YOUR READING OF THIS ARTICLE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP WHATSOEVER. IF YOU ARE CONSIDERING ANY ACTION WITH LEGAL CONSEQUENCES, YOU SHOULD FIRST CONSULT WITH AN ATTORNEY OF YOUR CHOOSING.