Whether you live in a condominium, cooperative, or homeowners’ association, owners and their guests, tenants and invitees are bound by the association’s governing documents, which may include the declaration, articles of incorporation, and bylaws, and any rules and regulations. Prospective owners and tenants must understand what is required of them under these documents as they are bound to abide by the same. Enforcing the rules and restrictions is an important role of the Board of Directors. The association must enforce all rules and restrictions consistently and uniformly. If the Board fails to do so, it opens the door to a selective enforcement defense which could result in an association not being able to enforce certain restrictions.
When owners or their guests, tenants or invitees violate the governing documents, associations have certain remedies available to it under Florida law. In many circumstances, a friendly letter from the community association manager is sufficient to resolve the matter. In other circumstances, a more formal “notice of violation” will bring an end to continuing violations. In either event, it is a good idea to include photographs or other “evidence” of the violation in the Association’s letter to the violating individual. Whether you are dealing with a first-time offender or a more frequent offender, if the association is going to have to take more formal enforcement action, it can be more persuasive to a court or arbitrator if the violation has been documented and to show that the offender was provided with “evidence” of the violation.
It is also a good practice to ensure that any notices of violation specifically identify the provision (or provisions) in the governing documents or the rules and regulations that has been violated. Cite to the specific covenant or rule so that it is clear to the violator what “rule” has been broken. It is equally important to state what you are asking the individual to do in order to cure the violation. If an owner has not mowed their lawn or pruned their trees, for example, identify what actions the owner is being asked to take (e.g., mow the lawn and trim the tree); state what provision of the governing documents requires the owner to perform these tasks; clearly articulate when the actions must be taken (e.g., within seven days of the date of the notice); and explain what actions the association may take if the violations are not cured within the deadline set forth in the letter. Violators should be advised that if the association is forced to take formal legal action in order to compel enforcement, the association may seek to recover attorney’s fees and costs. You should work with the association’s legal counsel to make sure necessary language is included in your violation notices.
If a notice of violation is not effective (or not appropriate given the specific violation at issue), Florida law authorizes associations to assess fines and to levy suspensions to enforce the governing documents of a community. All three types of associations (condominiums, cooperatives, and homeowners associations) have the ability to impose reasonable fines, or to suspend for a reasonable period of time, the right to use common elements, facilities or association property for failure to comply with provisions of the declaration, the bylaws, or rules and regulations of the association. The statutes for each type of association provide fining and suspension as a remedies available to the association, and also provide the specific procedures that the association must follow to enforce such remedies.
If your association is not inclined to fine, there are other enforcement options available. For both condominium and cooperative association, the Board can pursue arbitration with the Department of Business and Professional Responsibility Division of Condominium Timeshares and Mobile Homes (the “Division”). Homeowners’ associations have the options of sending a statutory offer to participate in pre-suit mediation to an effort to compel compliance. Due to relatively recent changes in the law, condominium and cooperative associations may now also use pre-suit mediation as an option when an owner for the failure to comply with regulations and restrictions. When it comes to enforcement actions always check with your community association attorney for the best course of action to take in any given situation.
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