Florida HOA Lawyer Blog

Directors and managers of Florida community associations seem to be on a never-ending search for effective tools to compel unit owners or their tenants and guests to comply with the association's rules and restrictions. Until not too long ago, Florida condominium association boards had few practical remedies at their disposal to address violations. Of course, the condo associations could file lawsuits or arbitration actions to seek recourse for violations, but the costs of pursuing these cases is a significant deterrent, despite the hope that they will recover attorney's fees and costs should they prevail. The associations may also impose fines - if their governing documents allow - but deterrents to the implementation of fining as a viable remedy include the caps applicable to such fines and the difficulty of getting individuals to serve on fining committees.

As a result of recent legislative changes to the Condominium Act, associations gained the ability to suspend the rights of an owner, tenant or invitee to use common elements, common facilities or any other association property, in the event that the owner of the unit is delinquent more than 90 days in paying a monetary obligation to the association. Subsequently, as a result of the 2010 legislative session, a condominium association may also suspend, for a reasonable period of time, the right of a unit owner, or a unit owner's tenant, guest or invitee, to use the common elements, common facilities or any other association property for the failure to comply with any provision of the declaration, the association bylaws or reasonable rules of the association.

As with the imposition of fines, these suspensions may only be imposed if the association provides the owner with at least 14 days' written notice and an opportunity for a hearing. If applicable, the unit's occupant, licensee or invitee must also receive such notice. The hearing must be conducted and held before a committee of other unit owners who are neither board members nor persons residing in a board member's household. If the committee does not agree, then the suspension may not be imposed.

Unlike suspensions for failure to pay monetary obligations, the wording of the newly adopted changes to the statute does not limit the portions of the common elements, common facilities or association property that may be suspended for the failure to comply with any provision of the declaration, the association bylaws or reasonable rules of the association. This distinction creates the argument that associations may be more aggressive in this type of suspension, to include the suspension of the use of parking spaces, limited common elements, etc. - though conservative practitioners caution that this is not necessarily the case.

Additionally, the success of this type of remedy may depend upon various factors, including whether the community has the ability to enforce the suspension, whether there are community facilities that are worthwhile suspending, and whether there are qualified owners who are willing to serve on the committee that is required to impose the suspension. Lastly, when implementing the suspension, board members should be aware of what the association may be required to do in order to enforce the suspension in the event that the suspended individual defies it.

In light of the implications and procedural considerations related to the suspension of use rights, we encourage board members and managers alike to work closely with their association's legal counsel in order to determine the best course of action to address violations in their community.

A recent ruling by the Third District Court of Appeal reinforced the message that the courts are sending to unit owners who attempt to derail the collections efforts of their community associations with strategic counterclaims and legal maneuvers. The appellate panel upheld the Miami-Dade Circuit Court judge's decision in favor of the condominium association in a case in which the unit owner who failed to pay a special assessment brought a counterclaim for breach of fiduciary duty against the association.

The condominium association in the case, 21/22 Condominium Association, Inc. received a summary judgment of foreclosure against Coral Way Condominium Investments, Inc., which owned six units in the property and failed to pay its share of a special assessment for flood damage and air conditioning repairs. Coral Way had responded by filing its own counterclaim for breach of fiduciary duty against the association, arguing that the special assessment was invalid and would not have been necessary were it not for the association's alleged breach.

The appellate panel upheld the lower court's decision, noting that the allegations of breach of fiduciary duty are not a valid defense or avoidance to payment of the assessment. The court concluded that any success on its claim for breach of fiduciary duty would entitle Coral Way for reimbursement of its dues that were paid toward the purported improper expenditures, but it would remain responsible for the payment of the special assessment.

This and other similar rulings by the Florida courts are enabling community associations in the state to prevail in their collections efforts against owners who attempt to avoid paying their fair share by using strategic legal tactics and counterclaims. These court decisions are effectively deterring unit owners and the attorneys who represent them from using these questionable legal tactics against the associations, and their overall effect will continue to benefit the associations which are struggling to maintain their financial stability.