Synopsis:
(1) An HOA may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including, but not limited to, artificial turf, boats, flags, and recreational vehicles; and
(2) Associations must permit residents to display certain flags and/or to display certain flags during certain times of the year.
House Bill 437:
The Legislature passed House Bill 437 aimed at addressing flag and storage issues facing residents in community associations. The majority of the Bill addresses homeowners’ associations, but one amendment applies to condominiums as well. The Governor approved the Bill which amended several existing statutes and created a new statute, which will become effective on July 1, 2023.
Newly created § 720.3045 states that “[r]egardless of any covenants, restrictions, bylaws, rules or requirements of an association, and unless prohibited by general law or local ordinance, an association may not restrict parcel owners or their tenants from installing, displaying, or storing any items on a parcel which are not visible from the parcel’s frontage or an adjacent parcel, including but not limited to, artificial turf, boots, flags, and recreational vehicles.”
The statutory language is broad, as “items” is not explicitly defined, and the law has not been tested in the courts, so there are many outstanding questions regarding limitations, retroactive applicability, and enforceability where communities have robust architectural review authority and explicit guidelines governing the same. Our firm will be monitoring how courts interpret this law as claims are filed and is reviewing whether enforcement of such provision, when applied to communities with declarations explicitly prohibiting certain items on parcels, amounts to unconstitutional interference with existing contracts. We anticipate this new statute to be interpreted to only apply to dwellings lot parcels, and not other aspects of association property (drainage easement, retention ponds, etc.). Additionally, for communities that have two-story homes or views of other lots from across lakes or golf courses, the question remains if an association will be able to enforce restrictions based on those vantage points, where the item in question is out of view of the frontage/adjacent parcel. Please consult with legal counsel if there are any concerns regarding whether an enforcement matter may be initiated in light of this new statute.
Additionally, the Bill makes amendments to the following provisions:
Section 718.113, Fla. Stat. includes Patriot Day (9/11) as an approved holiday for a condominium owner to respectfully display one portable, removable United States flag.
- Section 720.3075, Fla. Stat. was amended to increase the allowable number of flags a homeowner may fly to two.
- Section 720.304, Fla. Stat. specifies that, despite contrary provisions in the governing documents, a homeowner may respectfully display up to two portable, removable flags from the approved list or display two flags on a flagpole, provided that one flag is the United States flag and the other is from the approved list. If flags are flying on the flagpole, they must adhere to the size restrictions in the statute and the second flag may not exceed the size of the United States flag. The approved flag list includes:
o The United States flag;
o The official flag of the State of Florida;
o A flag for one of the six branches of the U.S. Military;
o A POW-MIA flag; and/or
o A first responder flag, which may incorporate the design of another approved flag on this list, and honors: law enforcement officers, firefighters, paramedics/EMTs, correctional officers, 911 public safety telecommunications, nurses, search and rescue.
