Anyone who has ever read this column before will doubtless understand the following reader’s predicament. Anyone who takes the time to read their associations’ documents will soon realize that HOA documents do sometimes seem to be in conflict with what can be seen as the concept of common sense, but are, in theory, designed to benefit the community as a whole.
Again, that is the theory behind them, but as we all know, theory does not always equal fact. To continue a common analogy, in an HOA, the inside of your home may be your castle, but the exterior belongs to all the members of the kingdom. That is a little different in a condo association, where you share common walls and plumbing, so your personal right to the property is even further diminished. That is, of course, another deal entirely.
Suing the HOA is always an option, although you would technically be suing yourself, and if a monetary judgement is rewarded, you would technically have to pay a portion of that judgement as well.
I do not believe that, for HOAs at least, there is a state agency responsible for HOAs. Condos have an ombudsman who oversees the actions of their boards, but HOAs are ruled by a hodge podge of laws involving both business and community interests.
That brings us to the question at hand.
Many homeowners believe that some provisions in HO “Documents” contravene State, Federal and just plain common sense, involving, e.g., issues of privacy, illegal harassment, and enforcing HO regulations that oppose state laws such as the laws involving “Florida Friendly” landscaping (essentially an anti grass ordinance, designed to protect the environment from the hazardous effects of fertilizers, pesticides and herbicides.)
In essence, many of these regulations oppose the long standing concept that a “man’s home is his castle.”
What recourse does a homeowner have if an HOA refuses to taker action against a member of the HOA Board who is guilty of violating HO and village regulations and is intruding on the rights of another home owner in the HOA.
If a homeowner is a member of an HOA, and wants to sue the HOA for harassment or failure to enforce regulations violated by a Board member, can he sue the HOA if that means that he is also suing himself as a member of the HOA?!
Is there a state agency here in Florida that can compel an HOA to back off if it illegally, in effect, is harassing a home owner.
I was just discussing those issues with Dan Vasquez and he ran an article last week that addressed some of the differences between Condos and HOAs.
Condos are governed by a regulatory agency, the Department of Buisiness and Professional Regulation, Division of Florida Condominiums, Timeshares and Mobile Homes. Condo documents must be filed with the Division for approval most of the time (there are some exceptions) and developers are highly regulated as well through statutes and rules adopted into the Florida Administrative Code. Each condo or coop owner pays $4.00 per year to fund these government activities.
HOAs are not regulated the same way. While there have been efforts to “condoize” HOA operations over the past several years, creating another agency to govern HOAs or expanding the role of the existing agency is not popular with government officials, especially those that want less government, not more government.
The legislature has created some options for homeowners to pursue what they believe are wrongdoings or just “bad management”. Probably the most effective option is recall. Any (or all) of the members may be removed from office by recall if the majority of the membership wants new leadership. The Division publishes a guide to the recall process – that guide includes the form of written recall agreement and instructions how to file a petition with the Division if the recalled board members refused to step down. The process is designed to be user-friendly and really is a powerful weapon against rouge directors.
The legislature tried to help homeowners out by creating a pre-suit mediation procedure. The homeowner would ask the association to participate in this voluntary mediation before either one of them files a lawsuit. The form of letter to send is right in the statutes (720.311, Florida Statutes) and also on the Division’s website. The goal is to get the parties to sit down, address the complaints and try to come to some resolution. The costs of the mediation are split equally between the homeowner and the association so each has “skin in the game”.
Of course, more traditional means are appropriate if the circumstances so warrant. If a homeowner believes there are violations of criminal laws (i.e. peeping tom activities, theft of funds, etc.) they should contact law enforcement. If they believe there are violations of city codes, contact code enforcement. If they believe there are violations of state laws, call the appropriate agency (i.e. use of unlicensed contractors, performing work without a license, etc.).
Lisa A. Magill, Attorney at Law
Becker & Poliakoff, P.A.
Emerald Lake Corporate Park
3111 Stirling Road
Fort Lauderdale, FL 33312-6525
The Florida legal code contains many provisions dealing with homeowners’ associations, most of which have become law within the past couple years. This column will always try it’s best to answer any concerns that you, the reader, has about HOA life, law, and the like.
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