Community Update

Best Practices for Hurricane Preparedness

By: Kevin L. Edwards

It’s that time of year again. As the days get longer and the weather gets hotter, we know that hurricane season is fast approaching. Therefore, this is a good time to review some of the “best practices” to prepare for and protect the association in the event a hurricane comes our way.

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Strict Compliance vs. Substantial Compliance – Not Knowing the Difference Can Cost You!

By: K. Joy Mattingly

The Florida statues governing community associations often provide timeframes for notice to owners before the association can proceed with action, including passage of special assessments, adoption of fines and collections. While some statutory sections allow for “substantial compliance” with the statutory requirements, associations should be aware that the statutory timeframes require “strict compliance.” This means that any deviation from the statutory timeframes will result in the association’s actions being unsuccessful and subject to challenge from owners.

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Part 1: Can an Association Prohibit Smoking in Its Condominium?

By: Elizabeth A. Lanham-Patrie

Secondhand smoke is formed from a burning cigarette or the smoke exhaled by the cigarette smoker. Secondhand smoke contains over 7,000 chemicals, hundreds of which are toxic and nearly 70 can cause cancer. From 1964 to 2014, the Surgeon General reported that 2.5 million nonsmoking adults died from inhaling secondhand smoke. These are scary numbers and many people do not want to be subjected to secondhand smoke. So what can an association do? 

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Dwork v. Executive Estates of Boynton Beach Homeowners Association, Inc.
219 So.3d 858 (Fla. 4th DCA 2017)

By: Jay Roberts, Esq.

Proper enforcement procedure, and what can go wrong if it is not done, is the lesson of this month’s THIS CASE.

Jonathan Dwork (“Owner”) owned a single-family home in the community of Executive Estates of Boynton Beach, which is governed by Executive Estates of Boynton Beach Homeowners Association, Inc. (“HOA”). The HOA’s governing documents required owners to keep their roofs, fences, and driveways in good condition. HOA sent several notices to Owner stating that he was in violation of the governing documents. Receiving no compliance or response, the HOA began down the route of the fining procedure pursuant to F.S. §720.305(2). The HOA sent a notice to Owner that in 13 days there would be a hearing with respect to whether fines would be imposed. The HOA fines committee did approve the fines. Fines remained unpaid and the HOA recorded a claim of lien and later filed a two-count lawsuit seeking to foreclose the claim of lien or, in the alternative, monetary damages for the fines imposed. The lawsuit also sought to have its attorney’s fees awarded by the court. The HOA prevailed on the monetary damages count and awarded the HOA its attorney’s fees. The Owner appealed.

The appellate court pointed out that this case ultimately involves a matter of statutory interpretation. The appellate court pointed out that F.S. §720.305(2)(b) states that a fine or suspension may not be imposed unless the board first provides at least 14 days’ notice to the parcel owner of the committee hearing on the issue. The HOA argued that it “substantially complied” with the statutory provisions by giving 13 days’ notice. The appellate court was clear that F.S. §720.305(2)(b) must be “strictly complied” with, and that substantial compliance when dealing with this statute did not cut it. The appellate court reversed and remanded the lawsuit to the trial court with a mandate to enter judgment in favor of Owner (although not discussed, this likely meant awarding Owner his attorney’s fees and court costs as well).

This lesson of THIS CASE should be painfully clear. If you do not follow proper protocols in taking enforcement action, it does not matter how “in the wrong” the violator was, you will lose the legal battle. Be proactive and talk to your association attorney about making sure your community has appropriate authority to levy fines and/or suspensions, as well as setting up an enforcement protocol which makes sure that all proper due process procedures are met at each step of enforcement. Anything less could be end up being a very expensive lesson.