Condominium living has its advantages and challenges – one such challenge is often parking. Today, people move into these communities with several vehicles in tow and in condominiums, there is limited space in the parking garages and parking areas for unit owners and their guests. Sometimes this results in unit owners taking parking, that violates the terms of their condominium documents, into their own hands by anonymously drafting violation letters as if they were from the condominium association and taping the letters to the subject vehicles. We have seen recipients of these phony parking violation letters claim that this practice is “a federal offense to impersonate an agent of the management company or the condominium’s board of directors.” While this practice does not rise to the level of an actionable federal or local offense (and would not even constitute criminal vandalism if the letters are easily removable and do not damage the vehicles on which they are posted), it can be misleading, breed confusion, and result in additional frustration for both sides, without effectively addressing the underlying parking violation. It should be noted that if the violation letter is actually forged as if written by the condominium association and is mailed to the alleged violator, instead of being placed on the subject vehicle, there may be a civil or criminal cause of action against the sender.
Notwithstanding the fact that this practice is not unlawful, it may constitute a nuisance (especially if it is prevalent within the community, causes confusion, and the letters are difficult to remove from the subject vehicles). A nuisance is when one person engages in conduct (even though that conduct may be otherwise lawful) which unreasonably interferes with the enjoyment and use of another’s property. Most condominium documents include a clause that prohibits nuisances and practices that are a source of annoyance to others on the condominium property. Further, although all unit owners are members of the condominium association as an appurtenance to the unit they own, no unit owner is authorized to act on behalf of the condominium association simply by being a member. See § 718.111(1)(c), Florida Condominium Act. In other words, only the board of directors and its designees (e.g., the management company) may act on behalf of the condominium association. Accordingly, these phony violation letters, as the underlying parking issues that sparked them, may also violate the condominium documents as a nuisance and Florida law as an attempt to act on behalf of the condominium association when not serving on the board of directors or as the manager.
If unit owners or their guests are parking in violation of the condominium documents, in lieu of penning anonymous violation letters, it is recommended that the first step be for the affected unit owner to speak to them, and then to speak to the board of directors or the condominium’s management company if direct contact has been ineffective. Perhaps the unit owners are not aware that their parking is problematic, and the condominium association is not aware of the parking violations. However, a common question raised in condominium associations is whether the board has a “duty to act” when one unit owner complains about another unit owner’s behavior (or their guest’s behavior), whether it be a nuisance or a specific violation of the condominium documents. Unfortunately, the case law on point in Florida is not particularly settled and whether the board has a duty to enforce the parking or nuisance provisions of the condominium documents greatly depends on the language contained therein. See, e.g., Heath v. Bear Island Homeowners Association, Inc., 76 So.3d 39 (Fla. 4th DCA 2012) (ruling that a homeowners’ association taking legal action to enforce the Governing Documents was discretionary where the Governing Documents provided that the homeowners’ association “may, but shall be required to” seek enforcement of the governing documents). Although this is a homeowners’ association case, the same general principles should apply to condominiums with the text of the governing documents controlling whether enforcement actions are mandatory or discretionary.
Section 718.303(1)(b) and (e) of the Florida Condominium Act also confers standing on the unit owners to bring legal action against other unit owners directly, as well as tenants and other invitees occupying a unit, to enforce the terms of the condominium documents. While that is obviously not the preferred place to start, it is an option available to unit owners being impacted by the parking violations of others (or affected by the anonymous third-party violation letters that may rise to the level of a nuisance). Therefore, if directly approaching violators or the condominium association does not solve the problem (whether it be parking or the anonymous violation letters), an affected unit owner has to decide whether to live with it, or obtain legal counsel to address the issues formally.