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Property II: Class #10 Friday 9/14/18 Power Point Presentation National Cream-Filled Donut Day

Property II: Class #10 Friday 9/14/18 Power Point Presentation National Cream-Filled Donut Day. Music to Accompany Kies Tina Turner, Private Dancer (1984). ALL CHAPTER 2 MATERIALS, ASSIGNMENTS, SYLLABUS POSTED NEXT WEEK : Monday : Regular Class Meeting

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Property II: Class #10 Friday 9/14/18 Power Point Presentation National Cream-Filled Donut Day

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  1. Property II: Class #10Friday 9/14/18Power Point PresentationNational Cream-Filled Donut Day

  2. Music to Accompany KiesTina Turner, Private Dancer (1984) ALL CHAPTER 2 MATERIALS, ASSIGNMENTS, SYLLABUS POSTED NEXT WEEK: • Monday: Regular Class Meeting • Preview of 2d Written Submission: Legislative Policy Q • I’ll Do Rev. Prob 2H(1) as sample • Rev. Prob. 2H(2) Will be Submission Problem (Look At; Bring Any Qs) • Wednesday: No Class (Yom Kippur) • Thursday: Make-Up Class Room A216A (9:30) • Saturday: 2d Written Submission Due @ 5 (Big Cats)

  3. Chapter 2: Actual and Desirable Limits on Homeowners’ Association RegulationsSubstantive Limits: The Florida Standards, cont’dSubstantive StatutesKies

  4. Florida Statutes & DQ2.12-2.13 2.12. What circumstances might have caused the Florida legislature to consider passing each of these provisions? Who might have lobbied in favor of each? • Common Lawyering Task: Reverse Engineering a Statute • Imagination Exercise & Can Check General or Legal Press • Check General Language at Beginning of Statute & Legislative History if Available • Yields Arguments about Legislative Intent & Purpose

  5. Florida Statutes & DQ2.12-2.13 2.12. What circumstances might have caused the Florida legislature to consider passing each of these provisions? Who might have lobbied in favor of each? • 718.123(2) Cable TV Access without Extra Charge • From last time: • No reason for HOAs to deny access totally. Likely concern re HOAs trying to extort $$ from cable cos. & residents via fees for hook-up and use of necessary (monopoly) service. • Cable cos. (who do lots of lobbying anyway b/c heavy state regulation) likely to go to legislature for protection.

  6. Florida Statutes & DQ2.12-2.13 2.12. What circumstances might have caused the Florida legislature to consider passing each of these provisions? Who might have lobbied in favor of each? 718.123(1) Peaceable Assembly?

  7. Florida Statutes & DQ2.12-2.13 2.12. What circumstances might have caused the Florida legislature to consider passing each of these provisions? Who might have lobbied in favor of each? • 718.123(1) Peaceable Assembly • Possible hint of trigger in last sentence: “No entity or entities shall unreasonably restrict any unit owner's right … to invite public officers or candidates for public office to appear and speak in common elements, common areas, and recreational facilities.

  8. Florida Statutes & DQ2.12-2.13 2.12. What circumstances might have caused the Florida legislature to consider passing each of these provisions? Who might have lobbied in favor of each? 718.113(4) Display of Flag. Any unit owner may display one portable, removable United States flag in a respectful way regardless of any declaration rules or requirements dealing with flags or decorations. Possible trigger?

  9. Florida Statutes & DQ2.12-2.13 • 718.113(4) Display of Flag. Any unit owner may display one portable, removable United States flag in a respectful way regardless of any declaration rules or requirements dealing with flags or decorations. • Possible trigger? Number of highly publicized confrontations between HOAs and residents (especially vets and families of active duty military) during 1st Gulf War (1991) and after 9/11. • VET: “I love my country!” • HOA: “What’s love got to do with it?” • COUNSELING NOTE: OK to suggest gently to clients that they are being assholiceven if their position is legally correct.

  10. Florida Statutes & DQ2.12-2.13 718.113(4) Display of Flag. Any unit owner may display one portable, removable United States flag in a respectful way regardless of any declaration rules or requirements dealing with flags or decorations. 2.13. What problems might arise from the use of the phrase, “in a respectful way” in 718.113(4)?

  11. Kies v. Hollub (3d DCA 1981) • Subdivision (not HOA) Declaration required approval of Architectural Control Committee (ACC) for improvements and alterations; gave Committee unfettered discretion. • Ds installed tennis court lights w/o ACC approval. ACC sued to prohibit lights & trial court granted permanent injunction. • 3d DCA reversed (contingent on adherence to relevant zoning). • NOTE: HOA can restrict more than local zoning • HOA cannot permit what zoning forbids.

  12. Kies v. Hollub (3d DCA 1981) • Subdivision Doesn’t Look Much Like Typical HOA • Houses Custom-Designed & Built by Os (Not by Developer) Though ACC Had to Approve Plans • Luxury Homes: “$700,000 residence” at early 1980’s prices • Probably at least $3.5 million today. • May not include price of lot • “[N]o common recreational facilities” but D’s put private tennis court on lot.

  13. Kies v. Hollub (3d DCA 1981) • Not Literally HOA Case. I Included Because: • Common “Nuisance” Provision in Declaration (How to Interpret?) • Common Use of Architectural or Similar Committee • How much discretion allowed? • Parallels to similar gov’t committees/boards in zoning • Testimony shows subjectivity of aesthetics • Relevant in Chapters 1, 2, 3 • [Prof. Warburton from UM Architecture School] • Foot Candle is ‘wicked’ cool unit of measurement.

  14. Kies& DQ2.15 (Differences from to HOA Analysis) Language about “Disfavor” & Presumption against Enforceability: “[C]ovenants imposed by a general plan, restraining the free use of real property, although generally valid and enforceable, are not favored in the law and will not be honored by the courts unless the restraint is within reasonable bounds.” (1st Sentence on H27) If Challenge to Exercise of Discretion, Burden on Owners, Not on Subdivision (2d & 3d Sentences of H27)

  15. Kies& DQ2.15 (Similarity to HOA Analysis) Despite differences in language, looks very much like analysis of discretionary decision in HHII. Court implies “reasonableness” limit on ACC authority despite language in Declaration suggesting unfettered discretion. (see H27 Note 5) Court focuses on lack of objective support for ACC claims (as it did in HHII). Questions on Overall Approach?

  16. Kies& DQ2.16 (Ban on “Nuisances”) NUISANCES: No noxious or offensive activity shall be carried on upon any lot, nor shall anything be done thereon which may be or may become an annoyance or nuisance to the neighborhood. Common to Have Some Version of This in Declaration E.g., NUISANCES: No noxious or offensive activity shall be carried on in any unit or in any common area which may be or may become an annoyance or nuisance to the residents of one or more units.

  17. Kies& DQ2.16 (Ban on “Nuisances”) The court seems to require that an activity meet the technical legal definition of “nuisance” for the Board to invoke this type of clause. Is this a good approach or should we allow the Board some discretion in determining what is a nuisance?

  18. Kies& DQ2.17 (Architectural Control Committee) The Declaration in Kies creates a committee (ACC) with unfettered discretion to control physical improvements and alterations within the subdivision. HOAs often grant some form of discretionary control over physical improvements and alerations to the Board or to a Committee. Is the approach used by Hidden Harbour II for dealing with discretionary acts of an HOA Board an appropriate rule to oversee bodies similar to the ACC? Would it make sense instead to require more specificity about the scope and limits of the Committee’s authority in the Declaration or By-Laws?

  19. Kies& DQ2.18 (“Reasonable Inspections”) In their Declarations, HOAs commonly reserve the right to conduct “reasonable inspections of unit-owners’ premises” to ensure compliance with the HOA’s CC&Rs. Recently, at least one HOA Board has started to use publicly available satellite photos to help inspect unit-owners’ fenced-in yards. How should a Florida court treat this action? As simply an exercise of the existing rule? As a new rule? As a discretionary decision subject the the standards laid out in HHII?

  20. Kies& DQ2.18 (“Reasonable Inspections”) In their Declarations, HOAs commonly reserve the right to conduct “reasonable inspections of unit-owners’ premises” to ensure compliance with the HOA’s CC&Rs. Recently, at least one HOA Board has started to use publicly available satellite photos to help inspect unit-owners’ fenced-in yards. How should a Florida court treat this action? As simply an exercise of the existing rule? As a new rule? As a discretionary decision subject the the standards laid out in HHII? Would it change your analysis if the Board instead was using flying drones carrying cameras to do the inspections?

  21. Chapter 2: Actual and Desirable Limits on Homeowners’ Association RegulationsFIRST SET OF PROBLEMSReview Problem 2A (Nahrstedt)DQ2.11(b) (FL Law)DQ2.14 (FL Law)

  22. Review Problem 2A under Nahrstedt TestMandel, McLaughlin & Ramos LLC DEA creates a national public database of people who have been convicted of selling or possessing illegal drugs. Declaration of HOA in Calif: No person listed in Database may own or visit a unit in the complex. [Offenses by minors excluded.] Owners screened at time of purchase. Visitors screened in advance or at entrance gate. Violates public policy? Rat’lr-ship to prot’n preservation operation or purpose of affected land? Burdens on affected land far outweigh any benefit?

  23. DQ2.11(b) (Florida Law)Fleming & Mandel, LLC Vegan Villas = properly created FL Condo Complex. Declaration: Says “Primary Purpose” is “to create a community of human beings committed to respecting and preserving the lives of the other animals with whom we share our planet.” Bans “the knowing use or consumption of animal products by human beings anywhere in the Complex.” Wholly arbitrary in application? Violates public policy? Abrogates fundamental constitutional right?

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