ENFORCEMENT OF COVENANTS
This edition of the e-Lawyer is the seventh, and final, article in a multi-part series which addresses 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 (Volume V, Issue 4), we addressed the various options that may be available to community associations to enforce their covenants.
In Part II (Volume V, Issue 5) , we addressed the mediation/litigation process that is now required for the enforcement of HOA covenants.
In Part III (Volume V, Issue 6), we addressed the arbitration process that is required by Chapter 718, Florida Statutes, for the resolution of most condominium disputes.
In Part IV (Volume V, Issue 7), we addressed prevailing party attorney fees.
In Part V, (Volume V, Issue 8), we addressed the defenses most commonly raised by violators in response to the Association’s demand for compliance.
In Part VI, (Volume V, Issue 9), we addressed the fining process.
In this Part VII, (Volume V, Issue 10), we will address the other self-help measures that are available to community associations.
SELF-HELP ENFORCEMENT TOOLS
In Part I of this series, we briefly addressed the various self-help enforcement tools which may be available to community associations. In Part VI, we addressed the self-help measure of fining. In this article we will more fully address the other self-help measures which are available to community associations.
One of the most effective self-help measures that exists for both Condominium and Homeowner Associations is the power to tow improperly parked vehicles from association-owned or common element property. However, like other enforcement tools, the towing process must be properly performed.
In Volume II, Issue 6 (May 3, 2004) you will find a complete analysis of the requirements that must be met prior to towing any vehicle from your community. Please read that article carefully.
B. SUSPENSION OF USE RIGHTS:
Section 720.305(2), Florida Statutes, specifically allows 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 permitted by one of the HOA’s governing documents. In addition, the same minimum due process requirements required for fines (See Part VI) must be met in order to use this enforcement tool.
Importantly, no suspension may impair the right of an owner or tenant to have vehicular and pedestrian ingress to and egress from their residence, nor may it impair their parking rights.
Unfortunately, condominium associations have no right to suspend use rights.
C. SELF-HELP ACCESS RIGHTS:
A great number of HOA Declarations contain provisions that, on paper, permit Associations to enter onto private lots to cure violations. While this remedy looks inviting, there are a great number of reasons why this tool should not be used except in very rare instances. Some of those reasons are as follows:
a. There have been at least two instances where persons were arrested for exercising this right. While in each of those cases the charges were ultimately dropped, the damage was done.
b. The persons actually doing the work are at risk of an injury if the owner or the owner’s agent should physically contest the work being performed.
c. The Association is using assessment funds for a private purpose without a guarantee that the money will ever be recouped (e.g. mortgage foreclosure, bankruptcy).
d. Even if a lien is recorded, the Association will be required to prove the need for the action and the reasonableness of the expenses before a judge will confirm the legitimacy of the lien and allow it to be foreclosed.
e. The Association will become the guarantor of the work being performed.
f. The Association will be responsible for any damage that may occur on the property as a result of the work being preformed.
That being said, there may be rare instances where such action is warranted. For instance, if a home is clearly vacant, it may be appropriate to use this tool. However, it is highly recommended that no such action be taken without talking to your legal counsel.
While it is rare to find general self-help provisions in Condominium Declarations, Condominium Associations can rely on Section 718.111(5), Florida Statutes, for some relief. That statute provides as follows:
Right of access to units.--The association has the irrevocable right of access to each unit during reasonable 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 pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit or units.
Notwithstanding this statutory right, many, if not all, of the concerns outlined above for HOAs will also apply to Condominium Associations. Accordingly this right should be exercised with great caution and only after talking to your legal counsel.
The firm of Taylor & Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Palm Coast, 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. The opinions expressed herein are as of the date hereof, and this law firm undertakes no obligation to advise the Association of subsequent changes in the law.
©2006 Taylor & Carls, P.A. All Rights Reserved.
The firm can be reached Toll Free at 1-800-395-6235 or locally at 407-660-1040.
To unsubscribe to this service, please reply to this address
stating your desire to be removed from our distribution list.