Disabling Gate Access

Started by EllenD2 • 16 replies • 2978 views

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EllenD2 (Florida)
Posts: 2

Posted:

I am trying to find out if it is legal in Florida for a HOA to de-activate gate access to homeowners who are late in their assessments if there is also a manned station for guests and contractors. I have heard varying opinions but most seem to lean toward it not being legal. Some have said that the owner's lane is an amenity but others have said it is illegal to restrict owner ingress and egress.

GuyM1 (Ohio)
Posts: 318

Posted:

Hi Ellen

In my Association if Dues or Assessments aren't paid within the allotted time they can take away certain privileges until it's paid or a payment plan is agreed upon.

Guy

EdC5 (Florida)
Posts: 117

Posted:

I'm going to give my opinion as a FL CAM (note: I'm not an attorney, so this is not a legal opinion): Florida prohibits the blocking of ingress/egress of your home if you are delinquent in your dues. That said, if your community has, for example, two entrance lanes, one for owners with transponders for quick entry and one for guests and others without transponders who must "sign in" etc., then in my opinion it would fall within the parameters of statute to disable the transponder or other codes and require a delinquent owner to use the "visitors" entrance. Afterall, the requirement is that ingress/egress cannot be blocked, but that doesn't mean that it can't be made inconvenient.

Edward J Cooke, CMCA, LCAM

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By EllenD2 on 06/05/2018 6:57 AM
I am trying to find out if it is legal in Florida for a HOA to de-activate gate access to homeowners who are late in their assessments if there is also a manned station for guests and contractors. I have heard varying opinions but most seem to lean toward it not being legal. Some have said that the owner's lane is an amenity but others have said it is illegal to restrict owner ingress and egress.

NO, NO and NO.

CarolF (Florida)
Posts: 435

Posted:

EdC5 - I live in a gated community in FL, and our established policy for those in arrears is
exactly as you describe. Thus, no one has been "blocked" - just slowed down.

CarolF (Florida)
Posts: 435

Posted:

EdC5 - I live in a gated community in FL, and our established policy for those in arrears is
exactly as you describe. Thus, no one has been "blocked" - just slowed down.

SheliaH (Indiana)
Posts: 6,964

Posted:

Even though I agree this is probably illegal, you need to speak to an attorney if you want answers to legal questions. If you want to lean on homeowners who aren't paying assessments, there are probably other ways to do it, like suspend voting rights or use of community amenities like the clubhouse.

(Eeery time I read about community gates, I become more convinced they cause more problems than they resolve. You get problems with access by delinquent homeowners, regulating visitors, gates that break down - yuck! But that's just me.....)

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Had to re-read the post. No you can NOT prevent a non-paying Homeowner access to their home/property. The HOA may be able to restrict them from use of HOA amenities. For example, they or their renter can't use the pool, clubhouse, or a tennis court. It doesn't make sense to restrict one from their own property. It makes sense to restrict them from things the HOA money goes toward to support.

Former HOA President

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

You can't restrict a homeowner from having access to his or her property.

FS 720.305(3) says...

"A suspension may not prohibit an owner or tenant of a parcel from having vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park."

RichardP13 (California)
Posts: 3,868

Posted:

From experience, you can't suspend owner's access to their home, but unless they are on title to the property you can make it difficult for the others. If you have a gate access box, remove their name and visitors or others (UPS, FEDEX) will have to call their landline or cell phone. They would have to get of their butts and physically go to the front gate to push the remote control. They would not have a gate access code only the codes for a remote control.

CarolF (Florida)
Posts: 435

Posted:

"A suspension may not prohibit an owner or tenant of a parcel from having vehicular and pedestrian ingress to and egress from the parcel, including, but not limited to, the right to park."

Ingress and egress HAS NOT been prohibited. The main gate is available for this. It just may take a little longer to get through the main gate than going through the RFID lane.
That lane is an amenity, much like a club house or pool (which our master HOA does NOT have).

TimB4 (Tennessee)
Posts: 21,059

Posted:

Ellen,

Based on this 2014 article from a FL attorney, it appears that access can be restricted providing there is an alternate method of ingress/egress. That is to say, they can deactivate the members gate and force you to use the visitors gate.

Per the article:

For gated communities that have a gate guard for visitors and a key fob or other type electronic pass for owners, the owners pass to enter the owner’s gate can be deactivated then requiring the delinquent owner to wait in the gate guard line to enter the community. Such suspensions usually get the attention of the delinquent owners pretty quickly.

KerryL1 (California)
Posts: 14,550

Posted:

With Richard, Carol & Tim, I agree we can make it less convenient for ingress & egress so long as they still have access.

GenoS (Florida)
Posts: 4,276

Posted:

I would tread carefully. The 2014 article Tim linked quotes language in FS 720.305(3) that has since been amended. The pre-amendmed wording says, "... not impair the right of an owner or tenant of a parcel to have vehicular and pedestrian ingress to and egress from the parcel...". One definition of "impair" includes "impede, hinder, or hobble". I'd argue making an owner go through the slow lane at the entrance would constitute an impairment.

However, the more current language of FS 720.305(3) says, "... may not prohibit an owner or tenant of a parcel from having vehicular and pedestrian ingress to and egress from the parcel...", and in this case I think such an impairment does not rise to the level of a "prohibition". So I think with the current language of FS 720 it's acceptable to make an owner or tenant use the slow lane.

Surely there are other amenities and common areas an HOA can suspend access to and use of. To be sure, ask an attorney, but I think it's a questionable course of action that attempts to get around the legislature's specific language regarding vehicular access. What's next, a toll gate at the entrance to the delinquent owner's driveway? "We're not prohibiting use of the driveway or parking area, we're just making it inconvenient for them." Maybe cut a dirt road around the back side of the property and force the delinquent owners to use it?

The idea is to get them to pay what they owe, not punish them with petty restrictions. Access to the pool or the fitness room is an amenity you can suspend. Getting into the property is not. I wouldn't go there, but that's just me. It seems petty and vindictive.

ArtL1 (Florida)
Posts: 140

Posted:

What if the delinquent "member" has lost the home via foreclosure, but is still living in it? i.e. the County auctions the property, someone else has bought it, but the previous occupant has not yet been removed. Would it be appropriate in such a case to revoke gate access codes held by the previous owner/occupant?

MelissaP1 (Alabama)
Posts: 13,836

Posted:

No. Their belongings are still there. We had a similar situation. A man moved in with his girlfriend who was renting a house. She moved out. He stayed and squatted. The HOA contacted the owner. The owner was responsible for removal of the illegal tenant as they had no rental agreement. The former president (before me) had to go to court for the owner to act as a "witness" the man was indeed living in the home.

This would be a situation where the HOA needs to stay out of it unless needed as witness. Let the new owner dispatch the squatter. That is a whole other court battle the HOA doesn't want to be part of as squatters have rights. Something the owner has to sort out.

Former HOA President

GwenG (Florida)
Posts: 669

Posted:

There was an interesting case in a Seminole County HOA in 2014 brought by an owner (Acosta) who was behind in dues. In retaliation, the HOA denied pass-thru access to owner, its agents and guests thru the entry gate. Owner filed pro se and got a temporary injunction and then went on to file a complaint, get a permanent injunction and began to pay HOA assessments into a court registry. Owner eventually prevailed on settlement and only had to pay a small portion of the delinquent assessments AND the HOA had to pay all his costs of litigation. The owner also did not have to pay the pro-rata portion of the HOA's legal fees funded through assessments and HOA could not file a lien. To top it off, the original complaint also spun off additional legal complaints because the HOA refused to honor the settlement agreement and the case dragged on for years. It was a very expensive miscalculation for the HOA.

This is a case the HOA should review with their attorney before deciding to employ a "deny access" strong-arm strategy!

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