Two days ago, I got a call from a client and old friend who told me about the townhouse she bought 30 years ago. There were no covenants on the property. Her neighbor owns 2 adjacent units, has not been seen in years, and does nothing to maintain the property he owns. He rents them and allows employees to use them, she believes without charge. Now the adjacent unit has gaping holes in the roof, leaks throughout and into hers, and looks abysmal. Because of the condition of the adjacent units, she has tried to sell her unit and cannot. My friend and client is now 92 years old and wants to sell the property. It’s time.
I know I don’t have to say the obvious: No townhouse development ought to ever be built without well thought out restrictions, standards of maintenance and rights to enforce those restrictions and standards through an assessment, even if a single owner believes his unit should not be subject to the rights of his neighbor. No local government ought to let that happen. We are not in the wild west, or wherever it is that people were so far apart they needed to have no expectation about their neighbor’s use of his own property. The old south may have been the same. If so, that was another age.
The closer we live together, the more we need rules. Not just community-wide rules, like ordinances and statutes, but neighborhood covenants. And in today’s confrontational environment, maybe even rules of common courtesy like those our churches and families at one time conveyed to our children.
I’ve previously talked here about the Marketable Record Title Act, [MRTA]and that it actually cancels out restrictive covenants in subdivisions more than 30 years old. Yet its application to subdivisions is a matter of statute and of court interpretation of that statute. Our Florida legislature seems to be imbued with the philosophy that Americans expect freedom to make up their own minds about their own behavior and their own property, and therefore rules ought to be abolished or ignored. In my view, MRTA has no business negating covenants in subdivisions and townhouse developments.
The Florida legislature also says, for instance, that local government ought not be able to control whether homes in subdivisions can be rented on line for the weekend. That’s something the legislature wants owners to be free to do. Yet some rent their houses to the college fraternity that hosts a 3-day party in a subdivision where there was no room or plan for accommodating the cars, sounds, or conduct that sometimes is created by that weekend rental. Local governments in Florida are not permitted in any way to regulate the firing of weapons or where gun ranges can be built.
If the evidence showed that Tallahassee understood the need for meaningful and fair regulation, unaffected by money and special interests, I could conclude that our legislature just does not trust local governments, or in the case of real property restrictive covenants, even contracts between private parties. Instead, it prefers to regulate those matters from Tallahassee. But the legislature does not regulate (maybe cannot rationally regulate) even where it prohibits others from doing so. The evidence shows too clearly that elected officials want us to believe that freedom requires that each person should govern his own conduct.
This is a real property space, not a political one. But I submit that it has become politically difficult to agree on laws and rules that set limits because they always affect someone who matters. Special interests and money can bring about regulations that serve their own interests. But we elect officials who make us believe that they endorse freedom because that’s the American way. Freedom is in fact the American way. But not freedom from rules. It is freedom from rules made by people we did not elect, and from arbitrary, stupid rules. We cannot be free to decide which rules are convenient to follow, and which are not.
To return to real estate, the subject I have a license to write about here: real estate rules are being affected by the perniciously created political myth that each of us should be free to act without restriction by others. I believe what we learned in Sunday school is that others really matter. It is unrealistic not to believe that there are people who either make their own rules or have none at all. I argue for a higher standard both in our personal decisions and in our real estate.
