Enforcement of Covenants - Part 1
    This edition of the e-Lawyer is the first in a multi-part series which will address the enforcement of the covenants that regulate deed restricted communities (e.g. HOAs and Condominiums). For purposes of these articles, the term 'covenants' will include the restrictions found in Declarations, Articles of Incorporations, By-Laws, Rules & Regulations and Architectural Guidelines. These e-Lawyer articles will not, however, address issues relating to the non-payment of assessments.
 
    In Part I we will address the various options that may be available to community associations to enforce their covenants.
 
ENFORCEMENT REMEDIES THAT MAY BE AVAILABLE
TO COMMUNITY ASSOCIATIONS
 
    The following, in no particular order, is a brief discussion of the various enforcement tools that may be available to community associations. Many of these tools will be further addressed in upcoming Parts of this series.
 
1. IMPOSITION OF FINES:
 
    A. HOAs & Condominiums:
 
    Sections 718.303(3) and 720.305(2), Florida Statutes, specifically permit Condominium and Homeowner Associations to impose fines against members and tenants, guests, or invitees if they are found to be in violation of the Declaration, the Articles of Incorporation, the By-Laws or any Rules of the Association. This power may only be exercised, however, if this right is granted to the Association by its governing documents. Minimum due process requirements must be met in order to use this enforcement tool. Unpaid fines may not be converted into liens.
 
    B. Effectiveness:

    Even though unpaid fines may no longer be converted into liens, we have found this remedy to be effective when properly exercised.

2. TOWING OF VEHICLES:

    A. HOAs & Condominiums:

    Section 715.07, Florida Statutes, permits both Condominium and Homeowner Associations to tow improperly parked vehicles. For HOAs, this power is limited to towing from property owned by the association (e.g. common areas, private streets). With Condominium Associations, this power is limited to towing from property owned by the association (e.g. association owned pool areas) and from common elements. Vehicles may not be towed from private property (e.g. lots) or from public streets by Associations.

    Section 715.07 contains many procedural requirements that must be met if this tool is to be used. Please see Volume II, Issue 6 (5/3/04) of the e-Lawyer for a more detailed discussion of this enforcement tool.

    B. Effectiveness:

    We have found this remedy to be very effective when properly exercised.

3. 'SELF HELP' ENFORCEMENT:

    A. HOAs:

    A great number of HOA Declarations contain provisions that permit Associations to enter onto private lots to cure violations. While this remedy may exist and looks inviting, for a great number of reasons we strongly recommend against using this enforcement tool except in very rare instances.

    B. Condominiums:

    While it is rare to find general self-help provisions in condominium Declarations, when it is found, the same caveat listed above would apply.

    In addition, Section 718.111(5) grants to condominium associations the absolute right of entry into units during reasonable business hours when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association or as necessary to prevent damage to the common elements or to a unit or units. This power must be used with great care.

    C. Effectiveness:

    We have not found this remedy to be particularly effective.

4. SUSPENSION OF USE RIGHTS:

    A. HOAs:

    Section 720.305(2), Florida Statutes, specifically permits Homeowner Associations to suspend the right of any member or any tenant, guest, or invitee to use the common areas and facilities if they are found to be in violation of the Declaration, the Articles of Incorporation, the By-Laws or any Rules of the Association. As with fines, this power may only be exercised if this right is granted to the Association by one of its governing documents. Minimum due process requirements must be met in order to use this enforcement tool. Finally, access rights may not be suspended.

    B. Condominiums:

    Condominium Associations may not suspend use rights.

    C. Effectiveness:

    We have not found this remedy to be particularly helpful except in those instances where remote devices must be used to access recreational areas.

5. SUIT FOR DAMAGES (a/k/a 'Actions at Law'):

    A. HOAs & Condominiums:

    Sections 718.303(1) and 720.305(1),Florida Statutes, permit Condominium and Homeowner Associations to sue members, tenants, guests, and invitees for damages arising from the violation of the governing documents, rules or state law. Such lawsuits are referred to as 'actions at law'.

    B. Effectiveness:

    While such actions sound inviting, they are usually a remedy without teeth because, in order to prevail in an 'action at law', the Association must be able to quantify the actual dollar value of the damages caused to the community as a result of the violation. This is a difficult, if not impossible task, in most instances.

6. SUIT FOR INJUNCTIVE RELIEF (a/k/a 'Actions in Equity' or 'Injunctive Relief):

    A. HOAs:

    Section 720.305(1), Florida Statutes, permits Homeowners Associations to sue members, tenants, guests, and invitees for injunctive relief when a violation of the governing documents, rules or Chapter 720 occurs. Such lawsuits are referred to as 'actions in equity'. In a nutshell, an injunction is an order from a court that forbids someone from doing something that they should not be doing (e.g. constructing an improvement without ARC approval) or requiring them to do something that they should be doing (e.g. mowing the yard). State law now requires that the parties attempt to mediate disputes prior to the filing of any lawsuit.

    B. Condominiums:

    Section 718.303(1), Florida Statutes, purports to permit Condominium Associations to sue members, tenants, guests, and invitees for injunctive relief when a violation of the governing documents, rules or Chapter 718 occurs (e.g. obtain an order from a court forbidding someone from doing something that they should not be doing or requiring them to do something that they should be doing). Notwithstanding this section, Section 718.1255 now requires most disputes to be resolved by state employed Arbitrators through a well defined arbitration process.

    C. Effectiveness:

    While this is generally the most expensive of the available enforcement tools, this is also the premier enforcement tool and the one that is most likely to force compliance.

7. SUSPENSION OF A MEMBER’S RIGHT TO SERVE ON THE BOARD:

    We have included a discussion of this purported enforcement tool because it is sometimes believed that associations can suspend a members right to serve on Association boards as a penalty for the violation of the covenants.

    There is no statutory support for this enforcement tool. In fact, for HOAs, Section 720,306(9), Florida Statutes, makes it quite clear that all members are eligible to serve on the board. And, for condominiums, Sections 718,112(2)(d)1 & 3, Florida Statutes, make it quite clear that only convicted felons may be precluded from serving on condominium association boards.

    Accordingly, this is not an available covenant enforcement tool.

8. SUSPENSION OF VOTING RIGHTS:

    We have included a discussion of this enforcement tool because it is commonly believed that associations can suspend voting rights as a penalty for the violation of the covenants. In fact, condominium law strictly forbids such suspension and Homeowner Associations may only suspend the voting rights of members who are delinquent in the payment of regular annual assessments in excess of 90 days.

    Accordingly, this is not an available covenant enforcement tool.

ATTORNEYS’ FEES AND COSTS:

    Because the cost of enforcement is always a consideration, the issue of attorneys fees and costs will be addressed in a future Part of this series.

NEXT EDITION:

    In Part II of this series, we will discuss the mediation and litigation process that is now required for the injunctive relief enforcement of HOA covenants.

The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Daytona Beach, Florida, was founded in 1981 and has practiced in the area of community association law since that date. This edition was prepared by Robert L. Taylor, Esq. of Taylor & Carls, P.A. The information contained in The Association e-Lawyer should not be acted upon without professional legal advice.

©2006 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached at 407-660-1040.
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