Q: The foundation under my condominium’s sliding glass door has heaved which prevents me from opening the doors. My condominium manager says that I am responsible for taking out the slider door frame and grinding down the foundation cement. Am I responsible? (P.D., via e-mail)
A: This may be a symptom of a more significant structural issue and should be reviewed and addressed through the board of directors and probably looked at by an engineer. The association typically has the maintenance responsibility for the concrete infrastructure of a condominium building, although the declaration of condominium may make you responsible for the sliding glass door itself.
The basic rule of thumb is that you must look at the declaration to distinguish what parts of the building are “units” and what parts are “common elements.” Unless otherwise provided in the declaration, the unit owner maintains the units. The association maintains the common elements.
However, the declaration may describe common elements that are reserved for the specific use of a unit or group of units as “limited common elements.” The law allows the declaration to delegate maintenance responsibility for limited common elements to the benefitting owner(s), or to the association but at the expense of the benefitting owner(s), sometimes called a “limited common expense.” If the declaration is silent, maintenance of limited common elements is an association responsibility, as a “common expense,” meaning all owners share the cost.
Q: Can my HOA force me to have my roof, driveway, and garage doors power washed? (C.D., via e-mail)
A: Maybe. If the association’s properly adopted governing documents include provisions that are sufficiently clear and reasonably related to property values and the aesthetics of the community, these are enforceable.
A typical document provision might prohibit the accumulation of any visible dirt, mold, or algae on the homes or driveways. If other methods of cleaning would accomplish the same result, you may be able to pursue solutions other than “power washing.”
There are several different ways governing documents of a community can be enforced. The customary way is a lawsuit where the association would seek an injunction requiring you to clean your home. The winner of the lawsuit would be able to recoup their legal fees from the loser. Prior to starting a suit, the association would have to provide you with the opportunity to participate in pre-suit mediation, for which you be liable for half the cost.
Fining and suspension of common amenity use rights is another way to enforce governing documents. Depending on what the governing documents say, fines are typically one hundred dollars per day, capped at one thousand dollars for an ongoing violation. The HOA could potentially put a lien on your home of the fine reaches one thousand dollars. You would be entitled to a hearing before an independent committee before the fine could be finalized.
Suspension of common area use rights is also permitted for document violations. The suspension must be for a reasonable time. The association might argue that the reasonable time the suspension ends is when you do the work they think needs to be done. Suspensions are more related to common amenities and facilities and cannot restrict your rights of ingress and egress to your home. Hearings are required for suspension, in the same way as for fining.
Finally, depending on how your declaration of covenants reads, the association may also be entitled to pursue the remedy of “self-help.” This would typically involve the association hiring a contractor to do the work after you have failed to do so after them giving you reasonable notice and opportunity to correct the alleged violation. The association may also be entitled by the declaration to put a lien on your home which could be foreclosed just like a mortgage. Some associations have this remedy, some don’t, there are pros and cons from the association’s side of the case, as there usually is with most every legal issue.
My advice would be to ask a representative of the management company or the board to meet you outside your home, have them point out what they think is the problem, have your say, and see if the matter can be worked out.
Joseph Adams is a Board Certified Specialist in Condominium and Planned Development Law, and an Office Managing Shareholder with Becker & Poliakoff. Please send your community association legal questions to jadams@beckerlawyers.com. Past editions of the Q&A may be viewed at floridacondohoalawblog.com.