Question: The governing documents for our homeowners’ association contain a number of restrictions and rules. However, they do not contain any instructions on what happens if an owner fails to comply with the documents. If an owner is not obeying the documents, what does the homeowners’ association do? (D.H by e-mail)
Answer: The association has several options for enforcing the documents. The first step I normally recommend is to notify the owner of the violation and educate them of the requirements of the governing documents and seek their voluntary compliance. It is not uncommon for some owners to be unaware of the provisions of the documents and be more than willing to comply when the problem is pointed out. Of course, there are always those who would rather seek forgiveness than permission and feel that rules are made to be broken.
The Florida Homeowners’ Association Act, found at Chapter 720 of the Florida Statutes, provides that the association can impose fines or suspensions of common facilities use rights against an owner or the occupant of the home for violating the provisions of the governing documents. In order to impose a fine or suspension, the association must first give the person to be fined or suspended notice that the fine or suspension has been “levied” and that a hearing before an impartial committee of other owners, will be held before the fine or suspension is “imposed.” The owner must receive the notice at least 14 days before the date of the hearing. Further, even if the owner does not attend the hearing or request a hearing, it is my interpretation of the law that the association must still hold the hearing because the committee must either “confirm” or “reject” a fine or suspension that has been “levied” by the board before the fine or suspension can be “imposed.”
The association can also take legal action. Before the association can commence legal action, the association must first send a demand for mediation (arbitration is required in condominiums). The demand for mediation must state the subject of the dispute and provide a list of five mediators the association will agree to use for mediation. Once the association has sent the mediation demand, the owner has 20 days to respond with their agreement in writing that they will participate in mediation, and then the mediation must be scheduled within 90 days. If the owner fails to timely respond to the association’s demand for mediation, the association is then able to file an action in the court of appropriate jurisdiction to enforce the governing documents. The consequences of either the association not sending the presuit mediation before filing a lawsuit, or the owner not agreeing to participate in mediation, is that the party failing to comply loses their right to recover prevailing party attorneys’ fees in the event that they are the prevailing party in any subsequent litigation.