By: Harris B. Katz, Esq. Special to the Boca and Delray newspapers
Q: I recently moved into a new community and installed a satellite dish on my home. One of the board members approached me and told me that I was going to have to take it down. Then I refused, he threatened that he was going to turn the matter owner to the association’s attorney and that I would face fines and attorney’s fees if I did not remove it. I have yet to receive a letter from a lawyer, but can the association dictate that I cannot have a dish on my home? It doesn’t seem right to me. Thank you for your response.
E.S., Boca Raton
A: What you are describing is a common misperception by associations, both homeowner associations (HOAs) and condominium associations. Depending on whether you live in an HOA versus a condominium leads to a slightly different answer to your question. Let’s start with HOAs since it appears from your question that your specific problem stems from a single-family home in an HOA. You will be happy to know that while there are some enforceable restrictions, there is very little that an HOA can do to prevent you from putting up a standard, modern satellite dish. With condominiums, it can be a bit more complicated, but law still ultimately attempts to protect the consumer.
First, some background on the law surrounding satellite dishes in associations. Generally speaking, an association is mandated by its governing documents to ensure that community standards are upheld and can restrict what you do to the exterior of your home so as to not diminish the appearance of the community. This is the reason that many people decide to live in an association community. For those of us old enough to remember, satellites once were huge dishes that sat on the lawn. As you can imagine, there were quite a few associations that tried to restrict the installation of those dishes in the interest of maintaining community aesthetics. The inevitable lawsuits ensued and the courts muddied the water further by not reaching consensus on the ability of associations to enforce those community rules. In 1996, Congress enacted the Telecommunications Act of 1996. While not the main purpose of the Act, it did contain provisions that specifically addressed the issue of satellite dishes in communities. This provision is called the Over-the-Air Reception Devices (OTARD) Rule and it limits the ability of associations to ban or hinder the installation of satellite dishes, provided that the dish is 39.37 inches or less in diameter. The rule specifically prohibits any restriction that (1) unreasonably delays or prevents installation, maintenance or use of qualifying antennas; (2) unreasonably increases the cost of installation, maintenance or use of qualifying antennas; or (3) precludes reception of an acceptable quality signal.
So, where does the OTARD Rule leave those of us who live in an association? From an association’s perspective, any restriction that does not impair a viewer’s ability to receive video programming services is fully enforceable, as are any legitimate safety rules (such as violation of building or fire codes), even if such rules do impair reception. Thus, community associations can still require an owner to comply with rules governing the means, method, and location of the satellite dish installation, as long as there is no unreasonable delay or cost involved, and an acceptable quality signal can be obtained. However, this is, for the most part, where the association’s powers end. For instance, any requirement to pay a fee to be allowed to install an antenna is going to be considered unreasonable. Likewise, the FCC provides that a rule requiring an owner to have an antenna installed by a professional, as opposed to self-installation, is likely not an enforceable restriction. Nor can an association require written approval from an architectural review committee (ARC) or dictate that dishes be screened by expensive landscaping or paint, if such restrictions impact reception.
Regarding an HOA, there is very little that the association can do in terms of enforceable restrictions and you should be able to install your dish, provided that it is one meter or less in diameter and that it sits entirely on your property. You can attach it to any part of your home, including exterior walls or your roof if you so choose, as long as it does not overhang into a common area. The caveat is that an association may have you move it, if there is a less obtrusive location that does not impact your signal or increase the costs associated with installation. Concerning condominiums, as long as you are installing the dish in a location that is within your exclusive use or control (meaning it is part of your unit), the association cannot prevent you from doing so. This includes limited common elements such as a balcony, lanai or patio. However, it can prevent installation on a common element, even if you cannot get an adequate signal from your own unit.
Notwithstanding the above, because each case is unique, I would always recommend that, if you are facing some sort of restriction or enforcement by your association, you consider speaking to an attorney who can assist you in dealing with your particular situation.
Harris B. Katz, Esq. is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: email@example.com. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC. or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.