Quite a while ago I remember reading something about a law suit between condo association and owner re dish antenna. I can't seem to find it on the blog and we now have a situation where we told an owner that he had to remove a dish that has been up for a few years. The president gave him a permission letter but did not speak to the Board of Directors. A couple of weeks ago a vote was taken and a registered letter was sent to the owner up north to remove it. He saw a lawyer who says there was a case and the judge said that an association, even though it is written in the bylaws, cannot stop an owner from putting a dish on common condo property as it is a restriction of trade on the dish companies. In our case on the side of the building. He is threatening to sue. Are dishes allowed even if the by laws say no, not without the Board's okay, and the Board finally said no, even with a letter from the president alone saying it was okay. It is a mess. We also have another owner who was given permission by the president to put her dish on the back lawn. The Board voted to have her remove it as well. We really cannot afford a law suit!!!! Seems to me the by laws aren't worth the paper they are written on if judges overturn them. HELP!!
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The BLOGMEISTER finds this issue of such import as to warrant publishing the following response along with the original Post:
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Hi all,
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THIS IS NOT TO BE CONSTRUED AS LEGAL ADVICE; AS I AM NOT AN ATTORNEY. IT IS MERELY RESEARCH WHICH IN MY OPINION BEARS ON THE ISSUE AT HAND.
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1) Material alteration of the Common Element
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REF: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0718/ch0718.htm
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Florida Statute FS 718.113 clearly prohibits Material alteration without a 75% vote of the Unit Owners unless your Documents provide otherwise
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718.113 Maintenance; limitation upon improvement; display of flag; hurricane shutters; display of religious decorations.
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(1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. If the maintenance is to be by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportioning such costs among those entitled to use the limited common elements, and the association may use the provisions of s. 718.116 to enforce payment of the shares of such costs by the unit owners entitled to use the limited common elements.
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(2)(a) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.
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(b) There shall not be any material alteration of, or substantial addition to, the common elements of any condominium operated by a multicondominium association unless approved in the manner provided in the declaration of the affected condominium or condominiums as originally recorded or as amended under the procedures provided therein. If a declaration as originally recorded or as amended under the procedures provided therein does not specify a procedure for approving such an alteration or addition, the approval of 75 percent of the total voting interests of each affected condominium is required. This subsection does not prohibit a provision in any declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein requiring the approval of unit owners in any condominium operated by the same association or requiring board approval before a material alteration or substantial addition to the common elements is permitted. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.
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(c) There shall not be any material alteration or substantial addition made to association real property operated by a multicondominium association, except as provided in the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein. If the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein do not specify the procedure for approving an alteration or addition to association real property, the approval of 75 percent of the total voting interests of the association is required. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.
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(3) A unit owner shall not do anything within his or her unit or on the common elements which would adversely affect the safety or soundness of the common elements or any portion of the association property or condominium property which is to be maintained by the association.
THIS IS NOT TO BE CONSTRUED AS LEGAL ADVICE; AS I AM NOT AN ATTORNEY. IT IS MERELY RESEARCH WHICH IN MY OPINION BEARS ON THE ISSUE AT HAND.
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1) Material alteration of the Common Element
-
REF: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0718/ch0718.htm
-
Florida Statute FS 718.113 clearly prohibits Material alteration without a 75% vote of the Unit Owners unless your Documents provide otherwise
-
718.113 Maintenance; limitation upon improvement; display of flag; hurricane shutters; display of religious decorations.
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(1) Maintenance of the common elements is the responsibility of the association. The declaration may provide that certain limited common elements shall be maintained by those entitled to use the limited common elements or that the association shall provide the maintenance, either as a common expense or with the cost shared only by those entitled to use the limited common elements. If the maintenance is to be by the association at the expense of only those entitled to use the limited common elements, the declaration shall describe in detail the method of apportioning such costs among those entitled to use the limited common elements, and the association may use the provisions of s. 718.116 to enforce payment of the shares of such costs by the unit owners entitled to use the limited common elements.
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(2)(a) Except as otherwise provided in this section, there shall be no material alteration or substantial additions to the common elements or to real property which is association property, except in a manner provided in the declaration as originally recorded or as amended under the procedures provided therein. If the declaration as originally recorded or as amended under the procedures provided therein does not specify the procedure for approval of material alterations or substantial additions, 75 percent of the total voting interests of the association must approve the alterations or additions. This paragraph is intended to clarify existing law and applies to associations existing on October 1, 2008.
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(b) There shall not be any material alteration of, or substantial addition to, the common elements of any condominium operated by a multicondominium association unless approved in the manner provided in the declaration of the affected condominium or condominiums as originally recorded or as amended under the procedures provided therein. If a declaration as originally recorded or as amended under the procedures provided therein does not specify a procedure for approving such an alteration or addition, the approval of 75 percent of the total voting interests of each affected condominium is required. This subsection does not prohibit a provision in any declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein requiring the approval of unit owners in any condominium operated by the same association or requiring board approval before a material alteration or substantial addition to the common elements is permitted. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.
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(c) There shall not be any material alteration or substantial addition made to association real property operated by a multicondominium association, except as provided in the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein. If the declaration, articles of incorporation, or bylaws as originally recorded or as amended under the procedures provided therein do not specify the procedure for approving an alteration or addition to association real property, the approval of 75 percent of the total voting interests of the association is required. This paragraph is intended to clarify existing law and applies to associations existing on the effective date of this act.
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(3) A unit owner shall not do anything within his or her unit or on the common elements which would adversely affect the safety or soundness of the common elements or any portion of the association property or condominium property which is to be maintained by the association.
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2) Federal rule regarding placement of Antennae
2) Federal rule regarding placement of Antennae
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Please read the entire reference:
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REF: http://www.fcc.gov/mb/facts/otard.html
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As directed by Congress in Section 207 of the Telecommunications Act of 1996, the Federal Communications Commission adopted the Over-the-Air Reception Devices (“OTARD”) rule concerning governmental and nongovernmental restrictions on viewers' ability to receive video programming signals from direct broadcast satellites ("DBS"), broadband radio service providers (formerly multichannel multipoint distribution service or MMDS), and television broadcast stations ("TVBS").
As directed by Congress in Section 207 of the Telecommunications Act of 1996, the Federal Communications Commission adopted the Over-the-Air Reception Devices (“OTARD”) rule concerning governmental and nongovernmental restrictions on viewers' ability to receive video programming signals from direct broadcast satellites ("DBS"), broadband radio service providers (formerly multichannel multipoint distribution service or MMDS), and television broadcast stations ("TVBS").
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The rule (47 C.F.R. Section 1.4000) has been in effect since October 1996, and it prohibits restrictions that impair the installation, maintenance or use of antennas used to receive video programming. The rule applies to video antennas including direct-to-home satellite dishes that are less than one meter (39.37") in diameter (or of any size in Alaska), TV antennas, and wireless cable antennas. The rule prohibits most restrictions that:
The rule (47 C.F.R. Section 1.4000) has been in effect since October 1996, and it prohibits restrictions that impair the installation, maintenance or use of antennas used to receive video programming. The rule applies to video antennas including direct-to-home satellite dishes that are less than one meter (39.37") in diameter (or of any size in Alaska), TV antennas, and wireless cable antennas. The rule prohibits most restrictions that:
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(1) unreasonably delay or prevent installation, maintenance or use; (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal.
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Effective January 22, 1999, the Commission amended the rule so that it also applies to rental property where the renter has an exclusive use area, such as a balcony or patio.
Effective January 22, 1999, the Commission amended the rule so that it also applies to rental property where the renter has an exclusive use area, such as a balcony or patio.
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On October 25, 2000, the Commission further amended the rule so that it applies to customer-end antennas that receive and transmit fixed wireless signals. This amendment became effective on May 25, 2001.
On October 25, 2000, the Commission further amended the rule so that it applies to customer-end antennas that receive and transmit fixed wireless signals. This amendment became effective on May 25, 2001.
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The rule applies to individuals who place antennas that meet size limitations on property that they own or rent and that is within their exclusive use or control, including condominium owners and cooperative owners, and tenants who have an area where they have exclusive use, such as a balcony or patio, in which to install the antenna. The rule applies to townhomes and manufactured homes, as well as to single family homes.
The rule applies to individuals who place antennas that meet size limitations on property that they own or rent and that is within their exclusive use or control, including condominium owners and cooperative owners, and tenants who have an area where they have exclusive use, such as a balcony or patio, in which to install the antenna. The rule applies to townhomes and manufactured homes, as well as to single family homes.
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The rule allows local governments, community associations and landlords to enforce restrictions that do not impair the installation, maintenance or use of the types of antennas described above, as well as restrictions needed for safety or historic preservation. Under some circumstances where a central or common antenna is available, a community association or landlord may restrict the installation of individual antennas.
The rule allows local governments, community associations and landlords to enforce restrictions that do not impair the installation, maintenance or use of the types of antennas described above, as well as restrictions needed for safety or historic preservation. Under some circumstances where a central or common antenna is available, a community association or landlord may restrict the installation of individual antennas.
The rule does not apply to common areas that are owned by a landlord, a community association, or jointly by condominium or cooperative owners where the antenna user does not have an exclusive use area. Such common areas may include the roof or exterior wall of a multiple dwelling unit. Therefore, restrictions on antennas installed in or on such common areas are enforceable.
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I would opine that the impact of the references presented unambiguously provide that without the proper vote, placement of Satellite dishes on the Common Element; be it the ground or the structure of your building (roof or walls), is prohibited. On the other hand; placement on your patio, not to protrude past the screen is fine.
Dave Israel
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I would opine that the impact of the references presented unambiguously provide that without the proper vote, placement of Satellite dishes on the Common Element; be it the ground or the structure of your building (roof or walls), is prohibited. On the other hand; placement on your patio, not to protrude past the screen is fine.
Dave Israel
8 comments:
Some lawyer out of state is just blowing smoke at you. In FL your building CAN regulate common elements, but CANNOT restrict the owners personal area (i.e., back porch).
Reliance upon a representation made by a President, whereby he has given 'his' permission (without approval of the Board at a duly called and noticed meeting) does not constitute reasonable reliance. In other words the unit owner/resident cannot legally rely upon this representation. The Association cannot be estopped from requiring the removal of the dish on the common elements within a five year period of its installation (the statute of limitations on contract enforcement, (The Declaration of Condominium re: Material Alterations and Additions).
Anonymous 1:25,
The back porch is a limited common element (a specific form of common element) which is subject to exclusive use, yet is also subject to restrictive covenants contained in the Declaration (regarding use and alterations)and is also subject to reasonable Rules and Regulations promulgated by the Board. The Rules and Regulations for each Association are an attached exhibit to your governing documents. Unfortunately, when it comes to condominium living, there are numerous restrictions placed on what you can and cannot do, and what you are required to do with your 'personal area'.
Grace: I think this means you are okay to tell the guy to remove the antenna, but NO CV Association should be without a lawyer to advise on how to keep your pushy owners in line with the law. If not, you only have yourselves to blame...
Tell your dishy people they will love the new Comcast pkg when they get the digital box + Video on Demand, the Digital Starter package (18 additional channels) and the music channels. they can add on too.
Living With Rules Columinst Daniel Vasquez answers your questions
Know your rights
Daniel Vasquez on condos | Condo columnist
2:54 PM EDT, May 12, 2009
May a Florida condominium association prohibit me from installing a satellite dish on the condominium's roof?
Yes, under normal circumstances a condominium's roof is a common element which serves many if not all unit owners, not just the owner seeking the satellite dish. An important condominium association duty usually is protecting the roof.
Most owners do not want anyone on a roof which may cause damage to the weather membrane or to do anything that would invalidate a roof warranty, such as the placement of items on a roof.
As a result, many condo associations prohibit not only installation of a satellite dish on a roof, but also bar residents' access to the roof. The situation may be different if the roof top was part of an individual condominium unit.
Frequently the Federal Communications Commission's rules concerning small satellite dishes are misconstrued. The FCC rules do not require a condominium association to abandon the association's duty to protect the roof. In the condominium context, the rules generally apply to only areas which an owner owns or has exclusive use.
Could we just forget the common elements and all the associated b.s. including the mr/mrs.presidents ego's and let the people do what they NEED to do,
provided they do not harm other peoples interests?
Thank You.
John Berka.
John I guess you don't have a dish attached to the side of your building. I couldn't care less how it looks but what happens if a hurricane rips it off the wall and half the outer wall goes with it. Or if there were a big wind storm and some debris flew by and ripped it off the wall etc. Who do you think will be stuck for repairs? We don't even know if the owner has insurance on his condo let alone the side of the building. You are so involved in ego hunting that you don't see the picture, John.
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