Dispute Resolution Procedures for Condos & HOAs
.jpg)
How does your community address complaints? Is there a published procedure or is every complaint handled differently? Who has authority to handle the complaints? HOA Leader recently published an article with tips for handling homeowner complaints. Here is a link to one of the tips:
HOA Complaints: Turn Owners' Frowns Upside Down
How many times have board members heard the following complaints and made the following responses:
1. The unit owner across the hall from me constantly cooks food that stinks up the entire hallway, can’t you do something about this? (Typical Board response: What stinks to you may be perfume to others, please be tolerant.)
2. I’m afraid of my next door neighbor’s large dog. I saw him lunge at another dog, and he’s always growling. I think he might attack another animal or a child. (Typical Board response: Dogs are expressly allowed by our documents. There’s nothing we can do.)
3. This is the third time I’ve complained about water intrusion into my apartment from upstairs. Why won’t you fix the problem ? (Typical Board response: The water is coming from the upstairs neighbor’s unit, not the common elements and, therefore, we aren’t responsible.)
4. One of the unit owners continually harasses me, and I can’t stand it anymore. Lately, every time I see him he shouts out derogatory racial slurs. It’s getting to the point that I can’t even stand living here. (Typical Board response: This is a problem between you and your neighbor; we can’t control what people believe.)
Did the board respond appropriately? Maybe yes, maybe no – it’s a matter of degree.
The first complaint is in the nature of a nuisance complaint. The owner claims that the neighbor’s use interferes with the peaceful possession and use his or her unit. Under this circumstance (or similar complaints regarding noise, music, etc.), the board has an obligation to determine whether the behavior actually constitutes a nuisance in violation of the documents. The board is put in the position of balancing competing interests and determining whether the use is reasonable versus whether the use creates an actual, material, physical discomfort to a person of average sensibilities.
The second complaint may deserve more attention. An association may be held liable for injuries resulting from a dog bite, if it is proven that the association had knowledge of the dog’s propensity for violent or aggressive behavior. Even when the association’s documents allow for pets, it may be entitled to an order removing the dog, if it becomes a nuisance. I'll explain more about dangerous dog laws in another post.
The third complaint is heard often. Since the association has the duty to maintain, repair, protect and replace the common elements, it has the obligation to investigate the situation in order to ascertain the source of the water leak. If the water is leaking from the common elements, the association has an obligation to fix the problem. The association may have certain avenues available if a water leak from one unit results in damages to the common elements or other units. An “enforcement of maintenance” or other self-help remedy in the governing documents is extremely beneficial under these circumstances. Note - I haven't mentioned insurance - that subject will be addressed in a future posting on this site.
Finally, “harassment” is very difficult to define and even more difficult to remedy. Nothing an association can do will turn people into nice or pleasant people. However, if the level of harassment rises to physical violence or unlawful discrimination, the association may be held liable. In Casa del Mar Condominium Association, Inc. v. Richartz, 641 So.2d 470 (Fla. 3rd DCA 1994), the Court held that an association has standing (authority) under Section 718.303, Florida Statutes, to seek an injunction against a unit owner to prevent future acts of physical violence, or threats of violence, against the association, its directors, employees and residents. Moreover, in at least one case, an association paid more than a half million dollars to settle a case in which an African-American unit owner claimed that the board did nothing to protect her from the racial and sexual slurs, derogatory comments and physical threats of another owner.
Association boards must be cognizant of the happenings in the community and take member complaints seriously to avoid liability.
What do you think about a Receiver who is acting as the board of directors and is the arm of the court obtaining a $5,000 money judgment agaisnt a homeowner who had done nothing wrong but try to enforce her deed restrictions.
The Receiver refused to answer all complaints regarding improper joint stipulations, conflict of interest, no presuit mediation, improper amendment to covenant, excessive collections of attorney fees and excessive foreclosures? Also refused to produce copies of contracts and other records.
Has anybody heard of a worse situation for a homeowner to be in??!!
Great article. Thanks for the information. We have also visited www.hoamanagement.com/blog for information and updates.
I continue to learn so much from all of your columns. This one addresses an issue so important to Associations. Thank you.
Hi I own a condo in the Fort Myers area and am wondering if HOAs have to follow the Florida Statutes? One example is 720.305
"A fine or suspension may not be imposed without notice of at least 14 days to the person sought to be fined or suspended"
Our HOA has decided that they can restrict access to the pool for any reason they see fit without any notice or even a warning, for any length of time they want. The biggest problem appears that they do not want children in the pool splashing or playing, even though there is not anyone else at the pool.
RESPONSE: Condominium associations are governed by Chapter 718, Florida Statutes. Homeowners Associations are governed by Chapter 720, Florida Statutes. There are differences between these chapters.
North Palm Beach, Fl.
Does anyone know what the restrictions are for gas powered generators on the catwalks of condos of the upper floors? We have some residents that have purchased these and they're operating them close to the entrances/windows of other units.
Question: How does a condo association board handle the new law about signing a certificate which says the new board member will follow all rules and regulatuons of the condo assoc.and the condo laws of the State of Florida.--if this certificate is not signed and/or if it is-- and they then still ignore the rules and laws?
RESPONSE: You can try contacting the Division of Florida Condominiums, Timeshares and Mobile Homes for assistance - the agency has limited authority but it may be willing to speak to the concerned director. The statute says the director is suspended if he/she fails to submit the certification form or take a class. Counsel can help you with enforcing the suspension - there are several different tactics you can employ.