S.M. from Hillsborough County, Florida writes:
Dear Mister Condo,
We own a vacation townhome in a waterfront community. There is a new proposal by the HOA board to allow docks behind the Townhomes. At least three of the board members are strongly in favor of it. Not all Townhomes in our HOA will be able to permit a dock due to their location. The original developer in 2006 did not give the Townhomes Riparian Rights (the property line ends a few feet from the seawall) and the proposed docks would be built on submerged lands owned by the HOA. When we bought we specifically did not want docks in close proximity to our balcony and was assured by the Realtor that they could not be built there. We do not want the nuisances that would be created if our neighbors built one a few yards from our balcony. Can “privately” owned structures (i.e., docks) be built on HOA common property? What about liability? Would the HOA common land between the property line and seawall need to be deeded or leased to the dock owner? What about the Riparian Rights? This would require a change to the Covenants and 2/3 super majority to approve which have never been amended. Do we have any legal recourse to prevent this? Many of the units are owned by investors so it would probably pass the 2/3 and board members want it. There are also other identical Townhomes in the community in other HOAs that cannot construct docks due to navigational issues.
Mister Condo replies:
S.A., that’s a lot of questions but I understand your anxiety. I must begin by stating that I am not an attorney and offer no legal advice here. If you require a legal opinion on this matter, kindly seek the advice of a qualified local attorney to advise you. From what you have told me, I really don’t see any reason the HOA, following proper protocol, could be prevented from creating a dock for the use of owners within the HOA. The original developer didn’t see the need or marketability for having a dock so they didn’t pursue it. Your realtor, another non-attorney, told you what he or she thought to be true at the time. However, Florida is fairly liberal with riparian rights and unless the same navigational issues that prevented nearby townhomes from constructing their docks exist at your location, I doubt the state or local municipality would get in the way. That leave the 2/3 super majority of homeowners within the HOA. Your best bet to preventing this project from moving forward is cost and liability explanation to convince more than 1/3 of association members that a dock would not be in their best interest. Short of that, as long as the vote is conducted in accordance with association rules and the electorate votes in favor of the dock, I would think there is little else you could do to prevent it. As I mentioned at the onset of my reply, this is an important enough matter to you that I would think a consult with an attorney is in your best interest. Good luck!