Can a condominium association tow vehicles for unpaid assessments? 2013 Florida law amendments address the issue

By: Charles B. Jimerson, Esq.

Recent changes to the Florida Statutes may require many condo associations to modify their parking management programs. The Florida Legislature enacted House Bill 73 (“HB 73”), effective July 1, 2013, which limits the association’s power to suspend unit owners, tenants and guests from using specific common elements under Section 718.303(3)(a), Florida Statues. Among the new changes: an association may no longer suspend the right of owners, tenants or guests from using parking spaces. Until recently, this statute has been a broad source of power for associations to incentivize unit owners and residents to comply with the rules of the association. But the legislature giveth; and the legislature taketh away. So how do these new changes affect the status quo of an association’s parking program? Will condo associations be liable for expenses and damages for towing unauthorized vehicles? And how does the condo association comply with the new law, and yet still accomplish the goals of the association? This bLAWg post seeks to answer those questions and more.

Prior to HB 73, condo associations were statutorily-empowered to take action against owners and/or residents that did not comply with the provisions of the declaration, bylaws, or rules. Sanctions could include suspending, for a reasonable time, the right of a unit owner, tenant or guest to use the common elements, common facilities, or any other association property.  See Fla. Stat. § 718.303(3) (2012). But since July 1, 2013, the new amendment to Section 718.303(3)(a) prohibits an association from suspending “the right of a unit owner, or a unit owner’s tenant, guest, or invitee, to use . . . parking spaces.” Fla. Stat. § 718.303(3)(a).

The general intent of this HB 73 amendment is to prevent an association from suspending the use of common elements that would effectively deny a unit owner, tenant or guest from access to his or her unit. But, fear not: the language is more limited in application, leaving an association free to reasonably manage its parking program. At first glance, the statute appears to be a broad prohibition, which could preclude the association from enforcing its parking program through issuing parking decals and towing unauthorized vehicles. But upon a closer reading, it appears that an association’s ability to tow is generally unaffected.

The amendment expressly states, “[t]his paragraphdoes not apply to . . . parking spaces.” Id. A plain reading of the statute indicates that a condo association may not use its suspension powers specifically granted by Section 718.303(3)(a) to prevent the use of parking spaces. It does not prohibit the exercise of other powers granted to the association by statute or otherwise.  The statute is silent as to the ability to enforce parking restrictions. Therefore, an association’s ability to manage parking through the use of decals and towing remains unaffected, so long as the association doesn’t use such methods to suspend the rights of an owner, tenant or guest to park.

While an association may no longer suspend an owner’s right to parking spaces, the amendment does not affect an association’s ability to levy fines for parking violations or parking decal violations. If the association’s declarations or bylaws allow such parking fines, fines can still be levied regardless of HB 73. Further, this provision must be read in conjunction with the condominium’s declaration, which contractually provides the rights and obligations of the unit owners not inconsistent with the Florida Statutes. To the extent the declaration expressly conflicts with the Condominium Act, the Act controls. Fla. Stat. § 718.111(2). HB 73 does not address powers relating to reasonable parking restrictions that exist in the declaration or bylaws, and use is subject to reasonable restrictions imposed by the condo association board. See Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d 180, 181 (Fla. 4th DCA 1975). Under the recent amendments, the association retains the power to place restrictions upon parking that are reasonable. Fortunately, there is some guidance on measuring the reasonableness of parking restrictions not inconsistent with the statute: if the restrictions are contemplated in the declaration, there is a presumption of validity.

Historically, DBPR Arbitration has upheld condo association enforcement of parking rules and regulations, especially if contained within the declaration.  If the declaration mentions decals/stickers, then the association has a strong argument. Florida law makes a distinction between use restrictions found in the declaration of condominium, or “category one” restrictions, and subsequent rules adopted by the association, or “category two” restrictions. The category one restriction is clothed with a strong presumption of validity; a category two restriction must be reasonably related to the health happiness and peace of mind of the unit owners. Pines of Boca Barwood Condominium Ass’n, Inc. v. Cavouti, 605 So. 2d 984 (Fla. 4th DCA 1992). C.f. Maria Niz, v. Captiva Lakes Villas Condominium Association, Inc., 2010 WL 1665187 (Fla. DBPR Arb.) (ordering the association to cease requiring petitioner to pay $195 parking decal application fee where “[t]he Rules do provide that the Board may require the unit owner or lessee to use a decal, but that Rule does not give the Board any discretion to deny a decal to the unit owner or lessee or to impose conditions on the issuance of such a decal.”).

Florida’s condominium associations must be especially careful when towing vehicles off residential property. This is because associations must not only abide by the Florida Statutes, but also follow its condominium declarations, articles of incorporation and bylaws. If the condominium association’s governing documents require residents to have parking passes, stickers or some other form of identification to park in assigned spots on the property, then the association can tow vehicles parked in those assigned spots that do not have proper identification. If the condominium association’s governing documents are silent on such matters, then it may not have authority to tow.

Most condominium associations have designated visitor parking areas. If the condominium association’s documents are silent on visitor parking requirements, then it may not have authority to tow from that assigned visitor parking area. When a condominium association tows without proper authority, it may be subject to liability for expenses and damages. The penalties for unauthorized towing are severe: “When a person improperly causes a vehicle . . . to be removed, such person shall be liable to the owner . . . of the vehicle . . . for the cost of removal, transportation, and storage; any damages resulting from the removal, transportation, or storage of the vehicle; attorneys’ fees; and court costs.” Fla. Stat. § 715.07(4). Additionally, in certain circumstances, a person can be guilty of a misdemeanor of the first degree and/or a felony of the third degree for improper towing. See Fla. Stat. § 715.07(5)(a)–(b).

One possibility for condo associations to achieve compliance with Section 718.303(3)(a), while still serving the goals of association, is to designate certain parking spaces as “visitor or no-decal parking.” An association should first look to the governing documents to determine if the association may assign parking spaces to specific units. If so, the association can assign a portion of all parking spaces to those units in good standing, and the remaining spots can be assigned to visitors and units that are delinquent or otherwise not in good standing. The association can regulate the assignments by periodically issuing parking decals to those units in good standing.

The association should then modify the parking program (i.e. parking rules and regulations) to require owners, tenants, and guests without vehicle decals to park only in visitor parking spaces, which are typically sited in locations that residents find less convenient. As long as residents can park somewhere on the property, their right to parking is not suspended, nor is access to the unit denied in violation of the statute. This is true regardless of the inconvenience caused by requiring non-decal vehicles to park is visitor spaces. Further, the association can identify violations and properly enforce the parking program by towing non-decal vehicles that park in the spaces assigned to units in good standing. Accordingly, associations can avoid violating Section 718.303(3)(a), while incentivizing unit owners, tenants and guests to remain in good standing in compliance with the rules of the association.

Be aware that the governing condominium documents may already address which spots are owned by the individual unit owners or dedicated to them as limited common elements (if any), or which spots are owned and managed by the condo association as common elements. The association, and any parking program, must comply with the condo documents. Thus, it is recommended that the association seek qualified legal counsel to review its declarations, articles of incorporation, and bylaws to ensure its parking management complies with the condo documents and Florida law.

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