Exploring Use Restrictions

 

Use restrictions are common, but they’re often vague, silly, or unenforceable. “I’ve seen use restrictions,” explains Nathaniel Abbate Jr., a partner at Makower Abbate & Associates PLLC in Farmington Hills, Mich., who represents associations. “For example, I’ve one or two sets of governing documents that limit the frequency of overnight guests. But a rule like that is pretty much unenforceable. For example, is a family member a guest?”

Dennis J. Eisinger, a partner at Eisinger, Brown, Lewis & Frankel PA in Hollywood, Fla., who represents more than 500 condo and HOA associations, says he’s seen the gamut of use restrictions. “I’ve seen guest restrictions, lease restrictions, parking restrictions, restrictions on walking dogs, clothesline restrictions, restrictions on kids under a certain age swimming in the pool or using the racquetball court,” he says. “Some aren’t enforceable because they violate laws, like fair housing laws. Others are too restrictive. I’ve seen guest restrictions that require that owners have to be present when guests are there, so if you go out of town and want to leave your unit to guest relatives in Chicago, you can’t do it. Others aren’t practical in this day and age, like saying children under 18 can’t use certain facilities without adult supervision. But most 14-, 15-, and 16-year-olds should be able to use certain facilities.”

Eisinger says use restrictions may also be unenforceable depending on where the restriction appears–in your governing documents or your rules and regulations. “In Florida, even if the restriction is unreasonable, if it’s within the original documents–like the declarations, thereby constituting a covenant running with the land or an equitable servitude–they’re enforceable under Florida law,” says Eisinger. “The same is not true for rules. A board has to have due authority to enact such rules, and they have to be reasonable, which is very subjective. To me, where they emanate from is important to determining their enforceability.”

Finally, they’re unenforceable if they’re discriminatory. “Some use restrictions are very difficult to enforce, but if it’s a rule and everybody knows about it and it’s not discriminatory, you can enforce it,” says Duane McPherson, the San Rafael, Calif.-based division president at RealManage, an association management firm that oversees properties in Arizona, California, Colorado, Florida, Louisiana, Nevada, and Texas. “The minute it can be perceived as discriminatory and in violation of fair housing laws, you have to look at what you’re doing.”

Better Ways to Regulate

Even if use restrictions are hard to enforce, they can have value. “Things like parking restrictions and those limiting the number of guests are hard to enforce, hard to document, and hard to prove,” says McPherson. “But they’re used as a deterrent, especially in areas with high density to keep as many parking spaces open as the association can.”

Even so, rather than trying to regulate behavior with rules that are difficult to enforce, Abbate says some associations instead regulate the tangible results of the behavior they want to prohibit. “In some respects, it’s easier to deal with the side effects,” he says. “I’ve seen one or two sets of governing documents that limit overnight guests. But is someone an overnight guest if he leaves at 4 a.m.?

“On the other hand, if there are overnight guests, where will they park?” Abbate asks. “If a finite number of parking spaces are being dominated by the same people over and over, more common is to limit overnight parking in guest parking spaces. It has the same effect, but it’s easier to monitor. Or if you require no RV parking on your property unless it’s stored in the garage with the door closed, that cuts into being able to park your own vehicle in the garage, so owners end up parking in the street.

“There are some issues that may not be easily addressed,” concludes Abbate. “But you effectively curtail the behavior by dealing with the manifestations of that activity.”