Who Can Take Action to Enforce Against Violations of the Governing Documents of a Condominium, Homeowners Association or Cooperative?
In Florida, your home is likely to be a condominium, cooperative or a residence within a homeowners association. If so, there will be covenants, restrictions, rules and regulations that you and your neighbors are expected to follow. Violations of such rules are generally enforced by the association, but what can you do if the association is not enforcing its rules?
Condominiums are governed by Chapter 718 Florida Statutes, known as the “Condominium Act,” and their governing documents. Section 718.303 of the Condominium Association provides that each unit owner, each tenant and other invitee, and each association is governed by, and must comply with the provisions of the Condominium Act, the declaration, the documents creating the association, and the association bylaws which are deemed expressly incorporated into any lease of a unit. Actions for damages or for injunctive relief, or both, for failure to comply with such provisions may be brought by the association or by a unit owner against (a) the association, (b) a unit owner, (c) directors designated by the developer, for actions taken by them before control of the association is assumed by unit owners other than the developer, (d) any director who willfully and knowingly fails to comply with such provisions, and (e) any tenant leasing a unit, and any other invitee occupying a unit.
Therefore, when necessary, any unit owner can bring an enforcement action against the association, a unit owner, individual directors (whether developer appointed or unit owner elected), tenants, and even guests.
Homeowner Associations and Cooperative Associations
The Acts governing HOAs and cooperatives have substantially similar language to that above.
Enforcement Action by the Board
Often a neighborly resolution to the problem can be obtained through communications and the assistance of your attorney. Communications can take place outside of the formal association process or it can be done at a board of directors meeting where those affected are given notice and an opportunity to be heard. If this process does not resolve the problem, the Board of Directors will often undertake to resolve the problem. The Board has the ability to levy fines and suspend use rights. Those remedies are not available to unit owners. The Condominium Act, HOA Act and Cooperative Act provide that unit owners can take action to enforce the governing documents on their own but cannot themselves levy fines or penalties.
If intervention by a Board member or property manager does not resolve the dispute, or if the Board will not act, there are other methods available to attempt to resolve the dispute. Those are either Alternative Dispute Resolution (“ADR”) or litigation.
Mediation is the least aggressive form of ADR. Mediation can be either mandatory or voluntary. The disputing parties meet in front of a trained mediator, usually with their attorneys. The mediator will try to help the parties voice their grievances in a productive manner and resolve the problem. Mediators do not decide who is right or wrong, or what the true facts of the dispute are, like a judge would. Instead, mediators assist the parties to hopefully reach their own settlement. Mediators often shuttle between the parties and their attorneys as they negotiate settlement terms. The mediator does not make any ruling and the process is non-binding, unless the parties sign a binding settlement agreement at the end of the process.
Arbitration is quite different than mediation. An arbitrator will serve as a private judge who will determine which party prevails in the dispute. The parties present facts to the arbitrator, usually through attorneys, just as in a courtroom. Witnesses may testify, and documents may be presented as evidence. Eventually the arbitrator will come to a conclusion as to the facts, just like a judge, and award relief to one or the other party. Arbitrations can be either binding or non-binding. A “non-binding arbitration” results in an award by the arbitrator that is not binding upon the parties. A “binding arbitration”, by contrast, results in an award by the arbitrator that may be enforced by a court.
Finally, there is litigation, where a dispute is brought in a state or federal court where judges or juries are presented facts and render a “judgment” or “verdict” that is binding on the parties and may only be appealed if there is an argument over an issue of law. In a condominium setting, mediation is optional but arbitration is mandated whenever there is a disagreement between two or more parties that involves either:
(a) The authority of the board of directors, under this chapter or association document to:
1. Require any owner to take any action, or not to take any action, involving that owner’s unit or the appurtenances thereto.
2. Alter or add to a common area or element.
(b) The failure of a governing body, when required by this chapter or an association document, to:
1. Properly conduct elections.
2. Give adequate notice of meetings or other actions.
3. Properly conduct meetings.
4. Allow inspection of books and records.
Expressly excepted from the requirement of non-binding arbitration are any disagreements that primarily involve title to any unit or common element, the interpretation or enforcement of any warranty, the levy of a fee or assessment, the collection of an assessment, the eviction or the removal of a tenant from a unit, alleged breaches of fiduciary duty by one or more directors, or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.
In an HOA setting, pre-suit mediation is mandatory for disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association before the dispute is filed in court.
It is also important to note that, prior to a board taking any action against a unit owner for an alleged violation of the act or documents, the board must provide the unit owner with advance written notice of the specific nature of the dispute, a demand for relief and a reasonable opportunity to comply or to provide the relief, and notice of the intention to file an arbitration petition or other legal action in the absence of a resolution of the dispute.
It is important that an association takes action when necessary to enforce its rules. Rules and regulations that are not enforced will lose their effectiveness. If a rule is not consistently enforced, a violating unit owner may claim the defense of “selective enforcement.” Basically, why are you enforcing this against me when you failed to enforce it against other unit owners? Courts will often accept this defense. Rules and regulations of the community should be uniformly enforced so that when a serious situation arises, in which there is a clear detriment to the community, the association and unit owners have the authority to remedy the situation.
The attorneys of Thornton Law Firm routinely deal with condominium, homeowners and cooperative association enforcement matters, both on behalf of associations and unit owners.
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