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Covenant Enforcement is an Option for Property Owners

A reader recently posted the following inquiry to this site:

I live in a community in which the HOA documents are not being enforced, for instance most every homeowner in the community except for about 40 out of 245, do not maintain the property.  There are piles of junk in the back yard, some still have hurricane shutters up now from last year. The common areas are not kept up by the HOA and the board members are just to afraid to send out violations. I happen to be an officer on the board and I have tried everything I can to correct this situation. Is there anything I can do legally?  My property value is declining more than it should because of this situation.

Florida courts have held that any lot owner may enforce the covenants if the authority to do so is contained in the applicable deed restrictions or Declaration of Covenants or if the restrictions and requirements therein “inure to the benefit of each owner”.   Kirschner v. Baldwin, 988 So. 2d 1138 (Fla. Dist. Ct. App. 2008).

The case set forth above is a perfect example of how a homeowner has the right to redress what he or she perceives as a violation of the governing documents of the community, even in the event the association fails, or as in this case, declines initiate enforcement action.  In this case, Ms. Kirschner filed suit against the Baldwins, her neighbors, for both injunctive relief and damages as a result of the construction of a new garage in violation of the setback restrictions set forth in the Declaration of Restrictions, Limitations, Conditions and Agreements.  While the trial court initially ruled against her on various grounds, the appellate court reversed indicating that Ms. Kirschner had a right to seek enforcement of the documents.  Thus, the 40 or so responsible property owners in the subdivision have rights, even if the association ignores the violations.

Nonetheless, I understand your concern that communities are created with restrictions for a reason.  Many people buy property within a community association because they appreciate the uniform standards of maintenance and the quality of life those standards engender.  Unfortunately, some of those same people become demonstrably upset when asked to make the effort necessary to comply with those community standards, whether due to budgetary constraints or otherwise.  With appropriate language in the governing documents and an organized, conscientious board, community standards may be created and maintained successfully.   There are enforcement mechanisms in the Florida Statutes available to community associations and typically the governing documents will provide additional remedies.  There is no reason for your board to “be afraid” to engage in enforcement action, they just need thoughtful analysis of the issues at hand and clear direction as to how to proceed.

 

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2 Comments
  • Avatar
    Philip Anzalone
    April 25, 2009

    I live in a condominium of 112 units. One of the owners would like to give a GIFT to the Association up to $100,000 towards updating our lobby. I have reviewed Florida Condominium law and have been unable to find anything pertaining to gift giving. Legally can the Association accept this gift and if so what are the ramifications?

  • Avatar
    Paula Clemow
    September 24, 2010

    A covenant requiring unit owners to be assessed for any repairs to porches made into interior rooms has not been followed for years when applied to outside painting. There is far less outside painting required when this occurs. The association board now has assessed for this outside painting and each persons assessments seem to be different. Since for years this covenant was waved for painting can it now be enforced?
    RESPONSE: This inquiry is too fact and document specific to answer in this forum.