CAN YOU BECOME A GATED COMMUNITY?

Restricting non-owner vehicular traffic into to residential developments has become increasingly popular in recent years. Limiting access to a development can help decrease crime, discourage unwanted solicitors, and generally, increase property values. In some areas, associations are even discovering that unless they are a gated community, the resale values of their homes do not keep up with the values of neighboring developments. If your association has public roads and is considering constructing a gate across its entranceway, you should thoroughly consider both the practical and legal difficulties you can expect to encounter.

There are several steps an association should undertake prior to gating their community. The first step is for your Declaration of Covenants or Declaration of Condominium, Articles of Incorporation, Bylaws, and Rules and Regulations (the "governing documents") to be reviewed for provisions dealing with the authority of the association to make improvements to common property. If in that review it is determined that the roads in your community are private, then you will be dealing with the association's authority to make these common area improvements and alterations.

See Gated, pg 2

COVENANT ENFORCEMENT FOR THE NEW MILLENNIUM

LEAD TOPIC FOR THE 2000 COMMUNITY ASSOCIATION SEMINARS ANNOUNCED

Ever wondered what the new covenant issues will be for the new millennium? What order should amendments to your governing documents should be created? Can your association allow fishing or boating on the retention ponds? If you want the answers to these questions (and a whole lot more), make your reservation now for our 2000 Community Association Law Seminars. It's completely free! You can save your Association up to $950.00 by attending these seminars and obtaining valuable legal advice for free! Plus, get a complimentary continental breakfast. This year we are featuring the following topics:

Covenant Enforcement for the New Millennium

Amend Your Documents or Perish!

Drainage Systems: The Lurking Nightmare

These subjects are three of the five programs most requested by community associations. This program features three hours jammed packed with practical ideas and legal advice for your association.

See 2000, pg 3

Volume XVIII                              Page Two                        Clayton & McCulloh

A REVIEW OF YOUR DOCUMENTS IS AN ABSOLUTE NECESSARY STEP

Gated (from pg 1)

On the other hand, if your roads are determined to be public, there's nothing that can obstruct use of the roads except with the consent of your applicable government body. Generally, this authority will not be granted so long as the roads remain public, converting public roads within a subdivision from public to private gated ownership, maintenance and use is a major undertaking and has only recently been permitted by a few government entities. First, the city or county which owns the roads must agree to abandon their interest and vacate the road right of way in favor of the respective owners fronting on the road. Since this only puts title into the names of the various individual owners to the middle of the road for extent of the owners' road frontage, this vacation of the road obviously is not a complete solution to the problem. The balance of the issue of gaining association ownership and control requires each and every lot owner and all lien holders and mortgagees to execute and record appropriate documentation and make the transfer into the association. All association members and their mortgagees will have to join in consent to an appropriate amendment to the association documents to allow the roads to be received as common property of the association.

At this point, in whether the roads were initially public or private, they are now private and are owned as common property of the association. It is at this stage that the association must have its documents further amended with the founder and consent of its Members and Mortgagees, to provide that the entranceway to the community may be gated or otherwise restricted. To accomplish such action, the association will need to have legal right of entry by ownership or easement to construct and install the gate at the entranceway.

In conjunction with securing association approval and authorization to be authorized to gate the community, there will also be stringent requirements which the relevant city or county will impose before the roads will be allowed to be privatized and particularly, before any entranceway gates will be permitted after the authority of the association has been established, the public's rights in the road must be extinguished or "vacated." This process is relatively complicated and a full explanation of it is beyond the scope of this article. Basically, the city or county where the development is located must pass a resolution which vacates the rights of the public in the road. Unfortunately, the city or county may condition its passage of the above-described resolution on the association agreeing to transfer part of the common property it already owns to the city or county. The association's counsel should examine the governing documents and confirm that the association can take this action and should also advise the association of the proper procedure. If the governing documents do not allow the association to transfer common property to a public entity, the appropriate documents must be amended to make such an act by the association permissible.

The ownership rights of the owners of the lots/units directly adjacent to the road must also be eliminated. Under Florida law, vacating of a public road by a city or municipality generally vests title to the road in the adjacent lot/unit owners. Consequently, the adjacent lots/units' owners must convey their interests in the vacated road to the association after the city or county has passed a resolution vacating the rights of the public. Of course, it may be difficult and time-consuming to get all of the adjacent lot/unit owners to cooperate.

When title to the road has been conveyed to the association, the city or County Building Department must be contacted and the proper building permits must be obtained. There can be numerous complications and delays associated with this process. It is also very important to select a contractor who has experience in this area and who is willing to provide a great deal of assistance in dealing with the governmental authorities involved in the construction process. Your attorney should also be consulted whenever legal issues arise.

see Gated, pg 3

FREE GIFT FOR CLIENTS & MANAGERS

2000 (from pg 3)

further just for our clients and their managers! Starting this year, these is a special register for the seminar. The special program and gift will be available on at the C&M Express Line.

• Special Reserved Seating Area. Due to popular demand, this year we will be reserving the first few rows for our clients and their managers. Only two people per table will be featured in this reserved section of the room to ensure our pre-registered clients the most comfortable seating available. Other parts of the room will be featuring two to three people per table. Depending on location, there is a possibility of theater style seating (chairs only) for some attendees. This seating will be reserved for you until 9:00 a.m. only. If you arrive after 9:00 a.m., you may sit in any other section of the room.

The seminar flyers will be mailed approximately four weeks prior to each seminar. Please see the adjacent feature box for the approximate mailing dates to the location nearest you.

Due to the hotels, seating will be very limited in the Daytona Beach and Melbourne areas. We encourage you to make your reservations as soon as possible. If you have never attended one of our seminars, you are missing a rare opportunity to obtain free legal advice presented in an entertaining and educational manner. Don't wait! Register now! Call any of our offices to reserve your seat for these popular seminars.

Special Note:  In our last Association Developments (3^RD Quarter 1999), we printed a web site for our clients to check for information on their corporate status. After the article was drafted, the State of Florida changed their web site address. You can reach this valuable web site by using one of the two following pathways: "www.dos.state.fl.us" or "www.sunbiz.org." Either pathway will get you there! We apologize for the error. We were advised by the State that they frequently change their web site pathway, but the above two pathways should be used from now on.

The Clayton & McCulloh Building

1065 Maitland Center Commons Blvd.

Maitland, FL 32751

REGISTER NOW FOR OUR

2000 COMMUNITY ASSOCIATION LAW SEMINAR

Program Highlights

(See 1^st page of newsletter for more information on these seminars)

For the "Covenant Enforcement for the New Millennium" section of the program:

•   What are the breaking issues on covenant enforcement for the coming millennium?
•   Why it is necessary to establish consistent enforcement policies for the Association and consequences of not doing so.
•   Can a Board of Directors dictate what exterior paint colors can and cannot be used in a subdivision?
• What you can and cannot say in a covenant enforcement letter to a violating owner.
• Can an association prohibit fences? Are fences necessary for security?
• Can you gate your community? If so, how do you go about getting it gated? What are the costs involved?
• Can you prohibit the parking of boats and trailers on common elements or on an owner's lot? Can an association prohibit vehicles from parking on the street? Learn how to prohibit/restrict parking on public versus private streets.
• Some Associations dictate that all vehicles will be parked in a garage and not on your driveway. Can it be enforced? What happens when your teen-ager acquires a car and you now have three or more cars?