The Right To Peaceably Assemble In Condo Common Areas

The last two articles which I have posted to this blog take up issues related to certain Florida state and federal law grounds for condo purchasers to cancel their purchase agreements.  To be sure, these are timely issues given the market downturn which has impelled many a buyer to cast a critical eye upon the building that he or she has bought into, and with it, the purchase agreement which was inked when times were rosier.  But condos are not strictly investment vehicles.  While it may be easy to neglect this point while one gazes upon the numerous unfinished towers rising above the Miami skyline, these buildings were and are ultimately intended for human habitation.  And it is in this spirit of trying to attain a “long” view of things that I devote this article to an aspect of condo law addressing the “human habitation function” of condos.

Perhaps no other provision of Florida’s law regulating condominiums captures the essence of condo life more than section 718.123(1), Fla. Stat. (2007), which provides,

All common elements, common areas, and recreational facilities serving any condominium shall be available to unit owners in the condominium or condominiums served thereby and their invited guests for the use intended for such common elements, common areas, and recreational facilities, subject to the provisions of s. 718.106(4). The entity or entities responsible for the operation of the common elements, common areas, and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common elements, common areas, and recreational facilities. No entity or entities shall unreasonably restrict any unit owner’s right to peaceably assemble or right to invite public officers or candidates for public office to appear and speak in common elements, common areas, and recreational facilities.

(emphasis added). 

The bolded sentence, in my view, emphasizes the delicate covenant which lies at the heart of the condominium habitation structure.  The right to peaceably assemble is, of course, enshrined in the U.S. and Florida Constitutions and its presence there reveals that through the course of human history, the greatest threat to that right has emanated from government toward its citizens.  But the foregoing language in the Florida condo law suggests that in the “condo age,” perhaps the more significant danger posed to human liberty is from an unchecked condo board, not government.

While there is not much in the way of case law interpreting section 718.123(1), one case stands out: Neuman v. Grandview at Emerald Hills, Inc., 861 So. 2d 494 (Fla. 3d DCA 2003).  There, a group of unit owners sued their condo association after they were barred from holding religious services in their building’s auditorium.  While the unit owners argued that their right to peaceably assemble was unreasonably infringed, the condo association argued that a ban on all religious services in the auditorium was necessary because otherwise, there would be irreconcilable conflict among the various religious groups resident in the building, each vying for control of the auditorium.  The court, reasonably enough, sided with the condo association.

 The lesson to be drawn from Neuman is that condo living is fundamentally a battle over scarce resources — resources which are in many ways scarcer than in more traditional notions of community.  Fundamental rights — like the right to peaceably assemble — can and do receive protection in the condo context, but the need to “reasonably” temper such rights is a strong one, and will receive significant judicial deference.  Of course, the precise contours of this deference will be worked out in the courts for years to come, as condo living becomes more prevalent.

By Jared H. Beck, Esq.

This article does not constitute legal advice or the formation of an attorney-client relationship, and is not for re-publication without express permission of the author.

Mr. Beck has a law degree from Harvard Law School, and practices law in the courts of South Florida.  A significant portion of his practice is devoted to condo association issues.  He can be reached at 305-789-0072 or jared@beckandlee.com

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