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It is not unusual for non-compliant tenants or tenancies to create dissension in a community.  Sometimes the tenants haven't been screened, there may be too many occupants or too many vehicles, the tenants make noise and don't care if they disturb the neighbors, the tenants use so much water it seems like the shower is on all day, the tenants don't recycle, don't clean up after their pets (or bring pets on the property where prohibited) and litter, leaving association personnel (or volunteers) to clean up - the list can go on and on...

Residents complain to the board and the board asks counsel "Can't we just evict them?"

Well, there are specific procedures that must be followed in order to evict or otherwise remove a disruptive tenant and the person or entity seeking such eviction or removal must have the legal authority to do so.   Eviction is a remedy specifically tailored to termination of tenancies pursuant to landlord-tenant laws.  The Association is not the owner of the property and not the landlord - therefore a traditional eviction action is usually not an option.* 

However, the Association has the legal authority to enforce the governing documents (including rules and regulations).  Section 718.303, Florida Statutes specifically requires tenants (and other occupants) to comply with those rules as well as the Condominium Act.  Section 720.305, Florida Statutes says the same for HOAs.  Additionally, the governing documents usually impose an obligation on the owner to control and bear responsibility for the conduct of any tenants, guests or occupants.*  The Association may file a lawsuit* (or Petition for Arbitration depending upon the relief sought) asking the Court for relief from the problems caused by problematic tenants.  The Association can even ask the the Court for an Order requiring the tenants to vacate the premises which is what the Association asked in the Briarwinds Condominium Association v. Rigsby and Wood, No. 3D10-329, case.  The Third District allowed the Association to continue its case for injunctive relief against the owner and tenant.

What if you have a bad owner? Under Florida law, owners and tenants have different property rights. The Florida Statutes provide condominium and homeowner association owners with an exclusive right to possess their property. In Kittel-Glass v. Oceans Four Condominium Association, 648 So.2d 827 (Fla. 5th DCA 1995), the Court held that an association could not permanently enjoin an owner from entering their own unit.   Not to worry though - Associations have several options when faced with owner non-compliance, some of which are explained in other posts.

• * In some cases a tri-party agreement or other contractual relationship may provide the basis for use of the eviction process.
• * If they don't, consider proposing amendments.
•  *An HOA may be required to send a pre-suit demand for mediation.

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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.  

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