In 2010, at the height of the recent foreclosure crisis, community associations in Florida gained an effective tool to aid them in their efforts to collect upon delinquent assessments. It was at that time that the legislature amended Florida law to authorize community associations to suspend the rights of unit owners and their tenants to use portions of the community’s common elements and amenities if the owner became delinquent by more than 90 days in their obligation to pay association monetary obligations, including assessments. Currently, the law also extends the association’s right to suspend such use rights in the event that the owner or their tenants should fail to comply with the association’s governing documents or rules.
Prior to then, associations had few practical remedies at their disposal to address violations of rules. For instance, associations had the options of filing costly and lengthy lawsuits or arbitration actions, or imposing nominal fines. As for collection of delinquent assessments, associations’ options were limited to placing liens on the homes or units owned by delinquent owners – a remedy with limited effectiveness during the foreclosure crisis due to the statutory safe harbor protections benefiting lenders in Florida.
However, since its implementation, some associations have found that suspending owner and tenants’ rights to use common elements or facilities may be an effective measure for contending with delinquencies as well as violations of rules and other restrictions.
If an owner is more than 90 days delinquent in paying a monetary obligation to the association, the rights of the owner and their tenant to use the common elements until the monetary obligation is paid in full may be suspended. In such cases, no written notice must be provided to the owner prior to suspending such rights. If the suspension is based on an owner/tenant’s failure to comply with the association’s governing documents or rules, then the board must provide a written notice and opportunity for a hearing at least 14 days in advance of the suspension.
The portions of elements and facilities typically subject to suspension include pools, fitness centers, recreational rooms, tennis courts, and others. Also, in addition to applying the bans to owners and their tenants, they also apply to their invited guests. Bear in mind that associations may not prohibit an owner or tenant from having vehicular or pedestrian access to a residence, so their parking rights may not be suspended, nor may an association suspend utility services or the use of the common areas and elevators that are used to access the unit.
The success of this type of remedy may depend upon various factors, including whether the community has the ability to enforce the suspension or the existence of facilities subject to suspension, the use of which are desired by owners or tenants. Also, when implementing the suspension, board members should work closely with property management and onsite staff to develop policies and procedures that may be required in order to successfully enforce it.
In light of the implications and procedural considerations related to the suspension of use rights, association board members and managers should work closely with highly qualified and experienced legal counsel in order to determine the best course of action for their community.