HOA won't let me shutter a back window while I'm away for the summer - can they do that?

Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff , an attorney and author based in Boca Raton, has answers.

Question: I live in a newer community governed by an HOA, and we have hurricane glass on every window except for one bathroom that has an approximately eight-foot-high by eight-foot-wide glass block window. We all have shutters to protect this window, which window is in the rear of our home and is not visible from the street. Under our rules we are only allowed to close the shutter if a hurricane is imminent and the HOA board issues permission to close it. It must be opened again within a few days.

We are away for the summer and would like to leave our shutter closed for the hurricane season, but the HOA says we can't. Do we have any rights under the new Florida HOA laws? Signed, E.B.

Dear E.B.,

The HOA Act, at Section 720.3045, provides that regardless of any covenants or rules, and unless prohibited by law, an association cannot prohibit a parcel owner from installing, displaying or storing any items which are not visible from the front of the home or an adjacent parcel, common area or golf course. This would include, but is not limited to, the installation or storage of items such as "artificial turf, boats, flags, vegetable gardens, clotheslines, and recreational vehicles."

In my opinion (and this a newer law so there really hasn't been any litigation interpreting the statute) if the shutter over your glass block window is in the rear of your home and is not visible from a side lot, a common area or a golf course in back, I think you have a good argument that the association cannot keep you from installing the shutter for as long as you want. If not, then I think you would be subject to the rule.

You should be aware there is an aggressive argument that this law cannot retroactively impair the enforcement rights of an association that does not have so-called "Kaufman language" in its governing documents — a statement that the association is governed by the HOA Act as it may be amended "from time to time."

If that is the case, it could be argued that this law retroactively and substantively impairs the association's contract rights, which would be prohibited by the Florida Constitution. There is no way to know if a court would agree when this question is finally considered, but you may find that your association makes this argument, so you should be aware of it.

How to pay for multi-million dollar roofs under new Condominium Act

Question: Is it accurate to say that if a reserve study says your roof should be replaced in a year and it estimates the cost at $3 million, and if the association has $1 million on hand, that the association will have to assess the owners $2 million in the first year? Also, can owners vote to use non-SIRS reserves for SIRS items if approved by majority of owners? Signed, H.L.

Dear H.L.,

For those who are unaware, the Condominium Act provides that every residential condominium with buildings that are at least three stories high must prepare a Structural Integrity Reserve Study (SIRS) that establishes reserves for many big-ticket items, such as the roofs, plumbing, electrical systems, and other structural items. These SIRS reserves are mandatory and can never be waived, and they must be "fully funded" (collected in their full amount).

As for your first question, it likely depends on how your reserve specialist drafts the SIRS, but there is a theoretical possibility that they will insist upon a large initial contribution to collect sufficient funds for the roof replacement.

But whether collecting this money is required by the SIRS or simply due to the age of the roof, if the association failed to collect reserves for many years it is going to have to assess owners for the full cost of the roof replacement, one way or another. I haven't yet seen a reserve study that requires this, but I agree it's a theoretical possibility.

As for your second question, yes, the owners can vote to use non-SIRS reserve funds for SIRS purposes — just not the other way around. And in fact, because most or all of the SIRS items were previously part of the ordinary reserves, if you had collected such reserves, and particularly if the funds were pooled (useable for any purpose), I think those funds can be used for the same item without any owner approval, even if that item has been moved into the SIRS (it was, after all, collected for that express purpose).

Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer's Guide to Condominium, Co-Op and HOA Living." Email your questions to . Please be sure to include your location.