Editor’s note: Attorneys at Goede, DeBoest & Cross, PLLC respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Q: We live in a community that has a HOA with Covenants. During the past year, many of the covenants have not been enforced by the property manager nor elected board. They have constantly allowed random homeowners to do as they please without regard to the written covenants and restrictions. Most in our community moved here because of the covenants. It is not fair for one homeowner to be allowed to do something, and others not. Everyone should be treated the same. We just want the covenants enforced as written. Since they are not being enforced fairly, what options do we have?
A.W., Port St. Lucie
A: Thank you for your question, which raises an issue regarding something that is actually a very common situation. Board members have a fiduciary duty to enforce the association’s governing documents. However, prior inconsistencies and non-enforcement of some rules can hurt their ability to do so effectively. So, in effect, you have situations where there are clear rules set forth in the governing documents, yet because prior Boards, or oftentimes the developer prior to turnover, have failed to follow those rules. If you believe that the rules have been broken, you should contact your property management company to see if they are aware of the issue and whether or not there has been any attempted enforcement against the offending homeowner for violation of the association documents. You should consider copying the Board on any correspondence between you and the property manager. If the property manager has not taken action or fails to take action, you can certainly bring the issue directly to the Board. You should rely upon evidence of the alleged violation, including the applicable provisions from the governing documents, statements or support from any witnesses, photos of your neighbor’s house, etc. There is a possibility that the Board will agree with you, especially if the violation is clear cut. The Board can then take action to try and get the offending homeowner to comply with the rules in accordance with your association documents, including sending written notifications of the violation. It is important that you keep records of any such meetings with the property manager and Board, as these could be important evidence that they were aware of the issues, if you feel that you need to take action against in the future.
Every association’s governing documents are different. It is these governing documents that give the association the basis to enforce the restrictions, rules, covenants, and regulations of your HOA. The powers contained in those documents can vary, but they commonly give the power to impose fines on homeowners for rule violations or even sue homeowners to enforce the association rules. So, if you believe that the Board is not resolving the issue, you need to become familiar with the duties and powers given to the association within the community’s declaration and other governing documents. Sometimes these documents can be difficult to navigate, so you should consider speaking to an attorney should decide to pursue some sort of legal recourse.
Remember, just like members on the board of a corporation, an HOA Board has certain responsibilities and duties under the governing documents and Florida Statutes. A Board must act in the best interests of the community, using its sound “business judgment”, and must perform its duties reasonably and fairly, and may not act in a discriminatory or capricious manner.
Lawsuits against an HOA are typically costly and complicated and the outcome is never guaranteed. So, unless your issue is a “major” one, which is not subjective and the facts against the HOA strong, a lawsuit is often not worth the time and expense. Without knowing more, it is impossible to give any specific advice, but if you believe that you are have a issues at your community, you should definitely speak with a qualified attorney who can give you specific advice regarding your particular association after reviewing your governing documents.
Q: Our board is struggling between taking the easy route of just suggesting visitors don’t come and people abide by Desantis’ order vs. adopting a restrictive rule denying access to pools and exercise room. The concern of some board members is the risk of being sued for overreaching while the others are focused on not taking enough action and not accepting the Declaration’s responsibility to protect the health and safety of owners. Perhaps the board gets sued for negligence! It is a dilemma. Legal thoughts?
V.J., West Palm Beach
Although, as of the time of this writing, the statewide stay at home order has been lifted in much of the State, Miami-Dade, Broward and Palm Beach county orders are still effective. Under the current order, any portion of the common elements used in a manner which violates social distancing or gathering guidelines can be closed, including pools, spas, and gyms. Regarding the issue of guests or other visitors, you should urge residents to limit the number of their visitors for the immediate future.
Regardless of whether you shut down various common amenities, it is vital that the Board and its property manager avoid actions or communications which create the impression that the Board is responsible or obligated to maintain and/or protect physical health. While a Board may be responsible for operating and maintaining property, you are not required to guarantee physical health of the residents. You should be careful not to create the impression that you are responsible for certain things related to public health, inadvertently creating a duty that is not yours to keep, especially from a liability standpoint as you may create a duty that did not exist before as a result. Therefore, it is important that the Board avoid taking any actions or making any communications which create the impression that the Board is responsible or obligated to maintain and/or protect a resident’s health.
Harris B. Katz, Esq., is Managing Partner, Boca Raton of the Law Firm Goede, DeBoest & Cross, PLLC. Visit our website, www.gadclaw.com, or to ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. 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, DeBoest & Cross 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.