Screen - Balcony

Carolyn,

Yes you can ask after the fact.

When you do that, start with an apology for not reading the CC&Rs before hand, it was not your intent to violate that section and you are asking permission now (more flies with honey type of thing). Solidify your request to have the door by identifying others within the complex that have a similar door and that you are not asking for anything special that others haven't already been approved for.

Thanks for the wonderful feedback.

Here's the additional information that I did not include in the original post:

1. We have been living on this property for 17 years. When we moved in, there were barely any trees in the back of the building (over the fenced area). Now it is like a virtual rain forest. Additionally, there is a small body of water that probably accounts for the mosquitoes, etc. So, the landscape surrounding the property has changed immensely since we moved in.

2. Sensitivities come and go. He used to be very sensitive to crab meat. Would have to go to the emergency room and carried epinephrine around. Allergy testing indicated he was not allergic, but sensitive. There are known food sensitivities that have all of the symptoms as allergies, but they never show up on the tests. Same with insect bites, etc.

3. We have had birds building nests on our balcony. We kept hearing this loud noise in the morning and went out to find 3 baby birds chirping away in a box that we used for small storage items (on the balcony).

4. I just spoke with the Property Manager who indicated that she believes the board can approve this retroactively. One would have to go to the board and plead the case and receive a majority vote (in writing). Additionally, she said the board could make a resolution to change the wording and to include requirements for uniformity in terms of the screens. She also said that some of the existing screens might be grandfathered automatically because of the length of time they have been up. So, ours have only been up a year, and I am not sure what that length of time would be.

5. This came up because one of the folks decided to hang curtains that fly in the wind and all of the homeowners are angry. The President of the board told me that his priority is to "get the curtains down", but he is concerned that she might raise a fuss about the screens being up. The property manager indicated that the board can "allow screens", but "disallow" the curtains. I didn't know that was possible. She said it had to do more with aesthetic appeal and visual appearance.

I do appreciate all of your help....so very much.

Regards,
Carolyn

I am also wondering if this classifies as an "abandonment of covenant" as one of the homeowners has a screen that has been up for 12 years and it was never approved.

I think this depends on whether your board can fine or not. Long ago we got legal advice that our docs do not allow for fining, so our main form of enforcement has been sending stern letters. Beyond that we would need to sue for compliance, and it would have to be a pretty major issue for us to go to that level of expense and effort.

On the other hand, if your association can fine, ignoring the board could get expensive.

In response to the question on fines - even though YOUR documents may not provide for, Florida Statues 720.305 does -

720.305 Obligations of members; remedies at law or in equity; levy of fines and suspension of use rights.—
(1) Each member and the member’s tenants, guests, and invitees, and each association, are governed by, and must comply with, this chapter, the governing documents of the community, and the rules of the association. Actions at law or in equity, or both, to redress alleged failure or refusal to comply with these provisions may be brought by the association or by any member against:
(a) The association;

(b) A member;

(c) Any director or officer of an association who willfully and knowingly fails to comply with these provisions; and

(d) Any tenants, guests, or invitees occupying a parcel or using the common areas.

The prevailing party in any such litigation is entitled to recover reasonable attorney’s fees and costs. A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney’s fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation. This relief does not exclude other remedies provided by law. This section does not deprive any person of any other available right or remedy.

(2) The association may levy reasonable fines of up to $100 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may be levied for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to reasonable attorney’s fees and costs from the nonprevailing party as determined by the court.
(a) An association may suspend, for a reasonable period of time, the right of a member, or a member’s tenant, guest, or invitee, to use common areas and facilities for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association.

(b) A fine or suspension may not be imposed without at least 14 days’ notice to the person sought to be fined or suspended and an opportunity for a hearing before a committee of at least three members appointed by the board who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee. If the committee, by majority vote, does not approve a proposed fine or suspension, it may not be imposed. If the association imposes a fine or suspension, the association must provide written notice of such fine or suspension by mail or hand delivery to the parcel owner and, if applicable, to any tenant, licensee, or invitee of the parcel owner.

(3) If a member is more than 90 days delinquent in paying a monetary obligation due to the association, the association may suspend the rights of the member, or the member’s tenant, guest, or invitee, to use common areas and facilities until the monetary obligation is paid in full. This subsection does not apply to that portion of common areas used to provide access or utility services to the parcel. Suspension does not impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park. The notice and hearing requirements under subsection (2) do not apply to a suspension imposed under this subsection.

(4) An association may suspend the voting rights of a parcel or member for the nonpayment of any monetary obligation due to the association that is more than 90 days delinquent. A voting interest or consent right allocated to a parcel or member which has been suspended by the association may not be counted towards the total number of voting interests for any purpose, including, but not limited to, the number of voting interests necessary to constitute a quorum, the number of voting interests required to conduct an election, or the number of voting interests required to approve an action under this chapter or pursuant to the governing documents. The notice and hearing requirements under subsection (2) do not apply to a suspension imposed under this subsection. The suspension ends upon full payment of all obligations currently due or overdue to the association.

(5) All suspensions imposed pursuant to subsection (3) or subsection (4) must be approved at a properly noticed board meeting. Upon approval, the association must notify the parcel owner and, if applicable, the parcel’s occupant, licensee, or invitee by mail or hand delivery.

Thank you all for your comments. You have all been very kind in providing feedback.

My husband actually thought he was in compliance based on the following wording in the declaration: (unfortunately, he just saw "window" and "door")

Section 14J) Exterior Appearances (of the Architectural Control and Use Restrictions)--an excerpt

"..No awning, shades or screens or other items shall be attached to, hung or used on the exterior of any window or door or a Unit or on the exterior of any building without the prior written consent of the Board of Directors...."

This declaration was written and issued to us when we purchased the property in 1998. (we are original owners). Subsequent to that, rules and regulations were written in 2001 and later modified in 2015, which referenced the "patio" and "balcony". There was no mention of screens, so he thought it OK.

The reality is that he should have consulted the board in advance, but didn't. And, for that, we are so very sorry.

In addition to thinking he had read the rules correctly, he was friends with one of the board members at the time, who installed a black screen on his own balcony. This was never approved by the HOA Board. Then, there was another friend who has had a screen for 12 years, which was never approved by the HOA board. And, the board turned a blind eye when an owner hung curtains from their balcony for "privacy" when the trees were cut down. Permission was not sought in either case.

You might ask how I know these things? I know all of these people, have been neighbors for years, and they told me they never sought approval for any of these things.

Not excusing Jay (my husband's failure to comply), but he did review the rules and regulations, but failed to consult the declarations. He is going to ask for forgiveness as you suggested.

Thanks for your many kindnesses shown in providing feedback.

Regards....

I am not sure what it means, but our HOA does not have an "enforcement policy" on file. Our Declarations do not have any consequences spelled out. I know Georgia has some generic fining stipulations under the Condo Act. I have been here since the condos were built (purchased pre-construction in 1999), and we have never seen anything other than some rules and regulations that were published in 2001, but did not necessitate a vote by the homeowners.

Regards....

This is why I always tell my new owners that just because they see it somewhere else doesn't mean they can do it. You do not know about fines, liens, or maybe ADA accommodation for other owners.

a/b) Can they? yes. Should they? no
Rules/guidelines are to be applied equally. To deny one a screen because they are not facing the woods would be asking for litigation.
Instead, adopt a standard of the type of screen (color, etc.) and use this to approve/disapprove requests.

c) Yes. However, I don't understand why you don't allow curtains. If you want uniformity, specify the color of the curtain that must be seen from the street (they make blinds and curtains different colors on each side now because of HOAs)

d) Yes.

e) Yes. However (to look at it from both sides), an argument can be made that simply keeping the window/door closed does the same thing as a screen (preventing bees from getting into the house). Therefore, reasonable accommodation wouldn't be required. I would run this issue by an attorney.

The question is related to "retractable screen" that shields the homeowner's entire balcony. It sits inside of the railings, does not protrude into the space outside of the condo. It can be raised and lowered. Is almost transparent. It is to protect the homeowner while sitting on the balcony.

Maybe I was confusing...I am sorry.

Regards..

Yep a little.

So, now instead of a screen door, you are looking at enclosing the balcony with screening.

That can alter the reasonable accommodation perspective I had.

Again, I suggest a policy that allows with specific designs.

John,

Thanks for your feedback. This is actually a very professionally done job. The company is in Atlanta, and well known for their work. I tried to attach a few photos, but could not determine the "valid" file type.

It is motorized, retractable and my husband uses a remote control to raise and lower it. It does not roll up. It actually glides up as it is flush against the railing and moves up and down in a straight line.

Again, I really appreciate everyone's help as I navigate this area both as a homeowner and a board member.

As indicated before, he plans to ask for "forgiveness". ...and we hope he gets it.

Kind Regards,

Carolyn

Another link for the actual motorized screens.

http://www.retractablesystems.com/atlanta-motorized-screens.html

This is the verbiage my husband intends to submit to the Property Manager, who is really trying to find a way to remedy the situation of multiple screens being installed without a lot of damage to relationships. Please let me know what you think. He will write down the following in paragraph form.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
1. I have a motorized, retractable balcony screen by Clear View and a screen door.

2. I had it installed because it was impossible to enjoy the balcony with the number of bees, wasps, and even birds building nests on the balcony. And, I have an existing sensitivity to bee stings.

3. I reviewed the rules and regulations, and now realized I should have reviewed the Declaration which outlines the requirement to obtain the board's permission before installing the same.

4. I realize this was a personal oversight, I assume responsibility for that and offer my apologies to the board.

5. I would like to go before the board and submit a request for retroactive approval to retaining the screen (door and balcony covering). One aspect of this request is that in the absence of the screen, the balcony is unlivable.

5. The board is free to come and inspect the screen (balcony and door) should they need to.

6. Again, I offer my sincerest apologies for failing to read all documents and ask the board's consideration as I try to right this wrong and at the same time be able to safely use the balcony as was intended.

7. What are the next steps?
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Should he re-word anything, choose a different set of explanations? Your advice would be very helpful. He said he does not intend to mention the pre-existing screens as he does not want to get anyone else involved. As the board member, I know the pre-existing screens never received prior approval, but that is not something that he wants to pursue. He wants his request to stand on its own.

Would appreciate any feedback you can provide.

Regards,
Carolyn

You can read your CC&R's, by-laws, or ARC documents as much as you like. You do NOT enforce the rules in them The board or the ARC does. Again, it is great you read the rules and did the best to meet them. However, you still have ask PERMISSION FIRST before proceeding. Forgiveness in a HOA is not always granted and can carry a big bill...

Carolyn

In #6, eliminate sincerest and just apologize. No need to kowtow to the BOD.

Thanks everyone for your feedback. Your honest sharing and perspectives have been very helpful. I will pass along all of your wise and kind words to my husband.

On a similar note, the board had a homeowner come before us to request "retroactive" approval to keep curtains on her balcony. She was permitted to keep curtains on one balcony (didn't request approval, but was permitted by default). Now, she has purchased an adjacent condo and connected the two, and placed curtains on that balcony as well. So, we have a lot of challenges to deal with that have been going on for a long time. The Property Manager told us that we may have to let her keep the curtains up. I was confused as to that statement. She advised us to come up with a set of resolutions regarding "what we will allow" and what we "will not allow". We would then make sure that what we allow must (going forward) adhere to certain design specifications. She is suggesting that we grandfather those things that are already up. Very confusing.

Didn't mean to get off topic, but thanks so much for your assistance. Your help has been quite valuable from both the perspective of a "homeowner" and a "board member".

Regards....

Kelly,

Thank you. Yes, a precedence has been set because of the number of screens already installed (in fact one for 12 years which has exceeded the statue of limitations).

The board is fine with screens being installed on the units that face the woods OR cannot be viewed from the parking lot or the driveways, etc. So, we will need to address those guidelines and communicate them to the community.

The screens installed are very professional (i.e., retractable screens that require a remote; clear view so that they appear light when there is a lot of sun, but darker when the sun goes down).

Appreciate your feedback.

Carolyn