Reposted by HomeQwest Realty Group, LLC
Cape Coral, FL Property Management and Luxury Real Estate
Most property managers are often astounded to learn that there are limitations on restricting the installation of satellite dishes by residents. Many managers lack sufficient knowledge of the various rules that are applicable, and some managers just decide to not comply with those rules. That is a big mistake and can lead to significant liability. Some reckless property managers even remove satellite dishes from locations within the apartment community because they determined that the satellite dishes were not authorized to be installed in those areas, in turn exposing their companies to substantial liability. It is crucial that the property manager realize that there are limitations as to how they may prohibit satellite dish installation on apartment community grounds. It is also very important that the lease along with the rules and regulations contain the correct wording, so that the apartment community is able to legally place restrictions on satellite dish installation by residents.
Federal Communications Commission
At the direction of Congress, Section 207 of the Telecommunications Act of 1996, the Federal Communications Commission adopted the Over the Air Reception Devices rule which concerns the restrictions on a viewer’s ability to receive programming from direct broadcast satellites. Effective in 1999, the Federal Communications Commission amended the rule and expanded its application to apartment communities. Effective in 2001, the FCC again amended the rule to also include antennas that receive and transmit wireless signals.
Prohibition of Outright Bans
The Over the Air Reception Devices rule applies to apartment communities. Satellite dishes cannot be prohibited in an exclusive use area of the apartment community or an area under the exclusive control of the resident. Exclusive use of the apartment community is defined as an area that is only used by the resident on the lease, and from which other residents can be excluded from entering. Patios and balconies not shared with other residents are considered exclusive use areas. However, the rule does not apply to the apartment community common areas. The roof, hallway and exterior walls of an apartment building are considered common areas. Thus, an apartment community should be able to prohibit the resident from installing a satellite dish to the exterior of the apartment building. The rule will not protect the resident if the satellite dish is installed in the exclusive use area but protrudes into the common area. For example, if the resident installs the satellite dish on the balcony, but it extends over the balcony, the property manager is allowed to restrict the resident in that case.
Management’s Right of Inspection
It is undisputed that an apartment community has the right to inspect a resident’s apartment home, and if necessary, make repairs. The apartment home, for purposes of the rule, is still considered to be within the exclusive control of the resident. Therefore, the Over the Air Reception Devices rule will apply, and the apartment community cannot prevent a resident from enjoying a satellite dish, even though management has inspection rights concerning the same area.
Exclusive Use Area Regulations
It is very common for a property manager to regulate exclusive use areas. For example, propane grills may be prohibited by the terms of the lease to be placed on the patio of the apartment home. The patio is not considered a common area. However, while the grill can be banned, the resident cannot be prohibited from placing a satellite dish on the patio. If it is an exclusive use area, the FCC Rule will be applicable, which will protect the resident.
Restrictions and Deposit Requirements
The installation of the satellite dish by a resident can be regulated by the apartment community, if the purpose of the prohibitions is to prevent damage to the apartment community. However, those restrictions must be reasonable. It would clearly be reasonable to prohibit the resident from drilling holes into the exterior of the apartment building. On the other hand, it would most likely not be considered reasonable to prohibit a resident from causing minor damage to walls or carpeting within an exclusive use area. The apartment community is allowed to place restrictions according to the FCC rule in order to impose safety regulations. For example, if the resident has placed a satellite dish on the patio, and it is not installed in compliance with the local building code, the apartment community can require removal of the satellite dish. Restrictions by the property manager for historic preservation are also allowed, in addition to restrictions on the size and weight of the satellite dish. The FCC rule would arguably not prevent an apartment community from requiring a deposit to cover possible damage from the installation of the dish. The deposit would most likely withstand judicial scrutiny, if the deposit amount is reasonable, and the deposit is fully refundable, excepting damage beyond ordinary wear and tear caused by the installation and use of the satellite dish.
Correct Lease Wording
The apartment community is allowed to impose reasonable restrictions on satellite dish installation. In order to impose those restrictions, they must be included in the lease and applicable rules and regulations. The lease should limit the resident’s ability to install satellite dishes in common areas and other areas of the apartment community not with the resident’s exclusive use or control, and should also limit size in accordance with FCC
regulations.
Dealing with Satellite Dish Lease Noncompliances
What if the resident has disregarded the lease provisions and placed a satellite dish within a common area of the apartment community? The initial impulse of the property manager is to simply remove the satellite dish. That action should never take place, but if so, will expose the property manager and property manager’s company to liability to the resident for property loss or damage, in addition to possible criminal charges for theft. The proper action for the apartment manager to take would be to serve the resident with a Seven-Day Notice to Cure. The notice should explain with proper details why the resident is not in compliance with the lease. Once the Seven-Day Notice to Cure has expired, if the resident is still not in compliance with the lease, and the property manager can prove it, then the next step would be to file an eviction, or in an abundance of caution, to serve the resident with a Seven-Day Termination Notice, giving the resident seven more days to vacate the apartment home or face eviction. In both cases, the property manager should have video and/or pictures to support the position that the satellite dish is in an unauthorized location or otherwise in violation of the rules, in the event the matter ends up in court.
Accepting Rent with Knowledge of the Lease Noncompliance
Many apartment communities with residents who place satellite dishes in unauthorized areas do not deal with that issue immediately. By failing to take quick action, but rather continuing to accept rent, it is possible that a judge may find that the apartment community has waived its eviction rights. In those cases, non-renewal in accordance with the terms of the lease may be the property manager’s most effective way to deal with the satellite dish problem.
by Brian Wolk, Attorney at Law
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