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The information provided by HOPB is for educational purposes only and it's not meant to provide or to be construed as legal advice. Any legal questions, should be directed to your attorney.
How are Homeowners Associations in Florida Governed in General?
Florida associations are governed by a board of directors (or just “board”) initially appointed by the declarant (usually the developer) and then elected by homeowners in accordance with the association’s declaration of covenants (“declaration”). The board consists of members elected by a plurality of other members, except that elections are not required if there are fewer or an equal number of qualified candidates compared to positions open. Fla. Stat. §720.306(9). Members who are delinquent on the payment of assessments or other fees owed to the association, or who have been convicted of a felony, are not eligible to serve on the board. Id.
The board, in turn, appoints officers to carry out the board’s duties and powers. Fla. Stat. §720.303(2). Officers and directors have a fiduciary relationship toward members and must therefore act reasonably within the association’s and members’ best interests and avoid self-dealing or conflicts of interest, on penalty of removal. Fla. Stat. §§720.303(1), 720.3033. Within 90 days of appointment, a board member is required to provide written certification that he or she has reviewed the HOA’s governing documents, will work to uphold the association’s policies to the best of his or her ability, and will honor the fiduciary duty owed to the members. Fla. Stat. §720.3033(1)(a).
Duties and powers of an HOA’s board, granted by the HAA and the community’s declaration, include enforcement of covenants, assessment and collection of member fees, maintenance of commons areas, and acting on behalf of the association in legal matters. The Homeowners’ Association Act (HAA) recognizes that Florida associations can exercise all powers granted by the association’s governing documents unless expressly restricted by statute. Fla. Stat. §720.303(1).
An association’s corporate structure is governed by its articles of incorporation, a legal document prepared when the association organizes as a corporation. Eligibility criteria and duration of terms for officers and board-members are usually set forth in the declaration, bylaws, or articles of incorporation. Most communities provide for annual terms. See generally, Fla. Stat. 720.303(2). Community members can obtain a free online copy of the association’s articles of incorporation and information about the association’s corporate status by visiting the Florida Corporation Commission and conducting a search under the association’s name here.
Developer control of a community’s HOA tapers off according to the percentage of community lots remaining under the developer’s control. After 90% of lots have been sold, the developer turns over effective control to the elected board, and non-developer members are entitled to elect at least a majority of the board. Fla. Stat. §720.307. The developer is entitled to elect at least one board member as long as it still controls at least five percent of lots. Id.
An association’s declaration is recorded with the county land records of the county in which the association is located and sets forth the association’s restrictions and covenants, the duties and powers of the board and officers, the manner in which association voting and elections occur, the process for calculating and collecting assessments, and any restrictions on the powers of the board or association. Fla. Stat. §720.303. Lot owners and any occupants of homes within the association are legally bound to comply with the declaration. Fla. Stat. §720.305. In the event of non-compliance, the association, acting through the board, can bring an action against the non-compliant member to recover amounts owed to the association or to compel compliance by court order. Fla. Stat. §720.3085. Individual lot owners may also bring compliance actions against other noncompliant owners.
Association members have a right to vote on certain association matters, including election of board-members and adoption or amendment of covenants. Voting occurs at member meetings, which must be held at least once per year. Fla. Stat. §720.306(2). Members may vote in-person or by proxy. Fla. Stat. §720.306(8). Proxies must be made in writing, signed by the member, and state the specific meeting for which the proxy is intended. Fla. Stat. §720.306(8)(a). For a vote to occur, a quorum (at least thirty percent of possible voters unless community bylaws allow a lower percentage) must be present. Fla. Stat. §720.306(1)(a).
What Restrictions does Florida Law Place on Association Powers?
Unless expressly limited by statute or by the governing documents, board members have the general authority to act for the HOA without a member vote regarding matters within the association’s powers, as granted by the governing documents or by statute. Fla. Stat. §720.303(1). Florida law affords substantial deference to an association’s declaration and articles of incorporation in interpreting association powers.
The Homeowners’ Association Act (HAA) expressly prevents associations from taking certain actions, such as restricting display of flags. Other actions - such as amendment of an association’s declaration, suspension of member rights, or institution of legal proceedings regarding matters in which the amount in controversy exceeds $100,000 - require affirmative approval by a majority or super-majority of members. All association actions and governing documents must comply with any applicable federal laws, including the Fair Housing Act and the Americans with Disabilities Act of 1990. And, an association’s governing documents may further restrict the powers which the board may exercise.
The statutory fiduciary duty of board members and officers requires that they act in good faith, in the best interests of the association and its members, and exercise ordinary prudence in carrying out their powers. Fla. Stat. §720.3033(1). Board members are also answerable to homeowners through statutory recall procedures and elections at annual member meetings in accordance with voting procedures set forth in the declaration. Fla. Stat. §720.303(10).
Although Florida’s HAA does not specifically restrict an association’s ability to publicize member information, property management companies acting as “debt collectors” are generally prohibited from publicizing member information relating to assessments by the Fair Debt Collection Practices Act (FDCPA) and Florida Consumer Collection Practices Act. Sensitive identifying information relating to members may be protected by other state and federal laws protecting confidential information. Confidential member information is expressly excluded from the records available for member review. Fla. Stat. §720.303(5)(c)(5).
Where do HOAs get their Authority?
A Florida association’s authority is primarily derived from its declaration of covenants, articles of incorporation, bylaws, and the Homeowners’ Association Act or Condominium Act. The declaration is essentially a contract between all members of a community under which homeowners agree to comply with certain covenants and restrictions and pay assessments for maintenance of commons areas. By purchasing a home within an association community, the homeowner is deemed to have accepted the terms and obligations of the declaration. An association, though, does not have authority beyond the powers granted by its declaration or by statute. Highland Lakes Property Owners Association, Inc. v. Schlack, 724 So.2d 621 (Fla.App. 5 Dist. 1998).
How Does a Florida Association Amend its Declaration of Covenants, Conditions, and Restrictions (CC&Rs)?
Florida’s Homeowners’ Association Act requires amendment of association declarations via member vote. The statutory default is that the voting majority for an amendment must be at least two-thirds of all members at a meeting at which a quorum is present, though an HOA’s governing documents can allow for a different standard. Fla. Stat. §720.306(1)(b). Amendments become effective upon approval and recordation. Fla. Stat. §720.306(1)(e). Copies of any amended documents must be provided to members within 30 days after adoption. Fla. Stat. §720.306(1)(b).
Fla. Stat. §718.110 details the requirements for amending a condominium association’s declaration.
Does Florida Law Require Handicap Accessibility in Associations?
Florida protects the right of disabled members to construct access ramps if medically necessary, as long as the ramp is as unobtrusive and reasonably sized as possible. Fla. Stat. §720.304(5). Though the Homeowners’ Association Act and Condominium Acts do not otherwise expressly require handicap parking and access, the federal Fair Housing Act protects member access in most situations by requiring “reasonable accommodations” to facilitate disabled persons’ access to housing.
How Do Property Owners Receive Notice About the Existence of an Association?
Before a purchase contract is signed, Florida law requires sellers to provide to prospective purchasers a “disclosure summary” identifying the association, the current assessment amount and any special assessments, and stating that the property is subject to restrictive covenants, which can be obtained from the county land records office. Fla. Stat. §720.401.
Practically speaking, in most cases home purchasers are provided with a copy of the association’s declaration and bylaws prior to or at closing. Because the declaration is recorded in the county land records, purchasers are also deemed to have “constructive notice” of the covenants at the time of purchase so that there is an “implied covenant” to comply with the community’s rules, even if the purchaser does not receive a copy of the declaration and affirmatively agree to the covenants. See, e.g., Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So. 3d 1087, 1091 (Fla. 2d DCA 2015).
What Documents Must an Association Maintain and Disclose?
A Florida association must maintain its “official records” and written meeting minutes for all board and member meetings, including notation of each board member’s votes (except that votes for election of officers may be conducted by secret ballot). Fla. Stat. §720.303(3). An association’s official records include its bylaws, articles of incorporation, declaration, rules, names and contact information for all members, all contracts to which the association is a party, and the HOA’s financial and accounting records. Fla. Stat. §720.303(4). Any contract an association enters into for the provision of services must be in writing, and an association must accept competitive bids for any contract requiring payment of funds in excess of ten percent of the association’s budget. Fla. Stat. §702.3055. However, contracts with HOA employees, attorneys, accountants, architects, and community managers are exempt. Id.
Official records must be made available for viewing and copying by a requesting member within 10 business days after the member’s written request. Fla. Stat. §720.303(5). The minimum statutory damages for an association’s failure to comply with a records request is $50.00 per day. Fla. Stat. §720.303(5)(b). An association can adopt reasonable rules with regard to the frequency, time, and manner for inspections but cannot require a requesting member to provide a reason for the request and cannot charge a fee if the member uses a portable device (e.g., smartphone) to make his or her own electronic copies. Fla. Stat. §720.303(5). Associations must also provide members with a copy of the association’s annual budget or notice that a copy is available upon request. Fla. Stat. §720.303(6).
At least 90 days after the end of the fiscal year (or other date established in the declaration), an association must prepare a financial report for the prior year, which must be made available to members. Fla. Stat. §720.303(7). If approved by majority vote, the board may alternatively produce a report of cash receipts and expenditures. Fla. Stat. §720.303(5)(d).
Any board meeting and meeting of an architectural review committee, if the development has one, must be open to all members unless the meeting is for the purpose of discussing personnel matters or is with the board’s attorney regarding matters protected by the attorney-client privilege. Fla. Stat. §720.303(2)(a) and (b).
For condominium associations’ document maintenance and inspection guidelines please see Fla. Stat. §718.111(12) and Florida’s Administrative Code, Rules 61B-22.002, 61B-22.003(3), 61B23.002(5) and 61B-23.0021(13).
What Budgetary Requirements Does Florida Law Place on Associations?
Florida HOAs must prepare yearly budgets estimating anticipated expenses and revenue and identifying any reserve accounts or funds set aside for deferred expenditures. Fla. Stat. 702.303(6). The specific methods for adopting budgets and calculating assessments will be set forth in the association’s declaration and/or articles of incorporation, and the board has a duty to comply with those requirements.
The Florida Condominium Act includes more precise budgetary requirements than the Homeowners’ Association Act. Each year, a condo association must prepare a detailed budget of estimated revenues and expenses - broken down by expense classifications and providing for reserve accounts for capital expenditures and deferred maintenance. Fla. Stat. §718.112(2)(f). Each condo association must hold an annual budget meeting open to all members. Fla. Stat. §718.112(2)(e). If the association’s budget is increased by more than 115 percent over the prior year, the association must hold a special meeting to consider an alternate budget if requested by at least 10 percent of members. Fla. Stat. §718.112(2)(e).
Does Florida Law Require an HOA Board to Seek Member Approval for Rate Increases and Special Assessments?
The protocol for calculating assessments is set forth in an association’s governing documents. Associations may not levy assessments at a board meeting unless notice of the meeting, which must be provided at least 14 days in advance, states that assessments will be considered and generally describes the nature of the assessments under consideration. Fla. Stat. §720.303(2)(c). At any member meeting, all members present have a right to speak for at least three minutes as to any item up for discussion. Fla. Stat. 720.306(6).
An HOA’s governing documents cannot be amended to increase any parcel’s proportional percentage of the common assessments – or decrease its proportional voting rights – unless the owner of the parcel consents to the amendment. Fla. Stat. §720.306(1)(c). Prior to a developer’s turning over an association, it cannot levy special assessments absent majority approval of non-developer members. Fla. Stat. §720.315.
The Condominium Act does not require a membership vote for approval of special special assessments and notice requirements can be found at 718.112(2)(c).
What Laws Empower Florida Homeowners Associations to Collect Assessments?
Florida’s Homeowners’ Association Act (HAA) authorizes associations to collect assessments in accordance with the association’s governing documents, which must specify members’ proportional share of common expenses in relation to the HOA’s budget. Fla. Stat. §720.308(1). Interest accrues on unpaid assessments at the rate specified in the governing documents or, if none, at 18.00%. Fla. Stat. §720.3085(3). If permitted by the governing documents, an association can also charge late fees of the greater of $25 or five percent of the past-due installment. Id.
The HAA authorizes fines of up to $100 per violation against members who fail to comply with validly adopted HOA policies. Fla. Stat. §720.305(2). Associations can charge daily fines for continuing violations, but the total cannot exceed $1,000 unless expressly authorized by the governing documents. Id. Fines cannot become effective until the association provides the member at least 14 days’ written notice of the proposed fine and the opportunity to be heard by a committee. Fla. Stat. §720.305(2)(b). If upheld by the committee vote, the fine becomes due five days after the hearing or vote. Id.
Who is Legally Obligated to Pay HOA fees to the Association?
Membership within the HOA of a community subject to an association is mandatory in Florida. Fla. Stat. §720.301(9). Generally, assessments are owed by every lot owner and assessed per lot so that a lot owned by two owners is only assessed once, but one owner who owns more than one lot will pay assessments for each lot owned. Florida associations can collect different proportions of assessments from different classes of lots – based on their state of development, the services needed, and “other relevant factors” – as long as separate classes are authorized by the governing documents. Fla. Stat. §720.308(1)(a).
If a member rents to a tenant a home or condo subject to association fees, the association can attach rent payments owed from the tenant to the delinquent owner. Fla. Stat. §§718.116(c), 720.3085(8). The tenant is obligated to make payment to the association upon receiving notice of the attachment, and payments are credited toward the delinquent assessment balance and the tenant’s rent. Id. An association can file an eviction suit against a tenant who has received an attachment but refuses to provide payments to the association. Id.
Is a Florida HOA Obligated to Remind Homeowners to Pay Association Dues?
The governing documents of most associations will also include notice provisions for assessment invoices as they come due. Before a Florida HOA can record a lien for unpaid assessments or institute a foreclosure action, it must provide at least 45 days’ written notice to the delinquent member. Fla. Stat. §720.3085(4) and (5).
Can a Florida Association Record a Lien for Unpaid Assessments and Fines?
A Florida HOA has a lien to secure payment of assessments against every parcel subject to the association. Fla. Stat. §720.3085. HOA liens “relate back” to the date on which the community’s declaration was recorded, and therefore hold preferential lien priority, except with regard to a first mortgage lien. Id. A Florida HOA perfects its lien by recording a claim of lien with the county land records. A claim of lien must identify the parcel, record owner, and amount and date due. Id.
Along with unpaid assessments, an HOA lien secures any interest, late fees, and reasonable collection costs and attorney’s fees incurred by the HOA. Id. However, any charges included in a lien must be authorized by the declaration, and fines cannot be included within a lien unless the fine amount is at least $1,000. Fla. Stat. §720.305(2).
Homeowners can contest a lien claimed by an HOA by recording and serving upon the association a “Notice of Contest of Lien,” after which the association has 90 days to file a suit to enforce the lien or else it is deemed void. Fla. Stat. §720.3085(1)(b).
Do Associations have an Obligation to Provide Actual Notice of Past-Due Assessments Before Filing a Lawsuit?
Before an association can file a complaint to foreclose its lien, it must provide to the delinquent member via certified mail at least 45 days’ written notice of the intent to foreclose. Fla. Stat. §720.3085(5). The notice cannot be sent until at least 45 days after the association has previously provided notice of its intent to record its lien. The notice must provide contact information for an HOA representative and state the amounts claimed (e.g., past-due assessments, interest, late charges, attorney’s fees). Id. An HOA can alternatively elect to pursue a money judgment against the lot-owner, rather than judicial foreclosure. Id.
Can Members of Florida Homeowners Associations Remove Board Members?
Any board member can be removed with or without cause by majority vote of homeowners, except that a board member only elected by a specific class of members may only be recalled by majority vote of that class. Fla. Stat. §720.303(10). A recall can be accomplished through a written ballot or agreement executed by the voting members in writing, with each affected board member subject to a separate vote. Fla. Stat. §720.303(10)(j). Upon the board’s receipt thereof, the board holds a member meeting within five business days and either certifies the recall or files an arbitration petition with the Department of Business and Professional Regulation. Fla. Stat. §720.303(10)(d). If the board fails to hold the meeting as required, the recall is deemed effective. Fla. Stat. §720.303(10)(f).
Vacancies resulting from a recall are filled by vote of the remaining board members, except that, if the recall removes more than a majority of the board, the vacancy is filled by member vote. Fla. Stat. §720.303(10)(e). An association’s governing documents may include more specific procedural rules relating to recall of board members and filling vacancies.
What Can Homeowners do if the Board Fails to Hold Meetings and Fill Vacant Seats?
Upon concurrence of at least ten percent of members, members can call a special meeting by providing notice of the agenda, time, and place of the meeting. Fla. Stat. §720.306(3). All meetings require at least 14 days’ notice to members. Fla. Stat. §720.306(5). Members also have the option of removing some or all board members who are failing to perform their duties. Fla. Stat. §720.303(10).
If an HOA’s board fails to fill vacant board seats sufficient to constitute a quorum, any member can petition the circuit court of the county in which the association is located for appointment of a receiver to take over management of the association. Fla. Stat. §720.3053. The petitioning member must first provide written notice to every other member of the HOA. If sufficient vacancies are not filled within 30 days of the notice, the petition can proceed, and the court can appoint a receiver, who has all powers of the board until the association fills the board vacancies. Id.
For condominium associations, please see Fla. Stat. §718.1124; Granada Lakes Villas Condominium Ass’n, Inc. v. Metro-Dade Investments, 125 So.3d 756 (Fla. 2013).
Does Florida Law Permit Compensation of any Type for HOA Directors, Including When they are Serving as Officers?
Florida’s HAA generally prohibits directors and officers from receiving a salary, compensation, or other financial benefit as compensation for service to the HOA. Fla. Stat. §720.303(12). However, the prohibition is inapplicable to fees or compensation which are specifically authorized by the association’s governing documents or which are approved in advance by majority vote of members. Id. Similarly, members of condo association boards and officers may not receive compensation for serving “unless otherwise provided in the bylaws.” Fla. Stat. §718.112(2)(a)(1).
Can Florida Associations Regulate Exterior Appearance of Homes?
Florida associations have considerable discretion in regulating exterior appearances of structures and improvements as long as the community’s declaration grants authority for the type of regulation contemplated (e.g., location, size, type, or appearance). Fla. Stat. §720.3035(1). This could potentially include anything from exterior color, fences, lawns and artificial turf, parking, and trash-can placement, to restrictions on above-ground pools and solar panels (which are specifically protected in a few states, but not in Florida).
Notably, neither the association nor an architectural review committee can further limit homeowner rights preserved in the declaration or enforce any policy inconsistent with what is set forth in the declaration. Fla. Stat. §720.3035(4) and (5). Unequal or arbitrary enforcement can be asserted by an owner as a defense to an HOA suit to enforce restrictions. White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla. 1979).
Florida associations are expressly prohibited from preventing homeowners from implementing “Florida-friendly landscaping” designed to conserve water resources. Fla. Stat. §720.3075(4)(b).
Can Florida Associations Prohibit Display of the American Flag?
Florida law, Fla. Sta. §720.304 (2) provides, in relevant part:
(2)(a) Any homeowner may display one portable, removable United States flag or official flag of the State of Florida in a respectful manner, and one portable, removable official flag, in a respectful manner, not larger than 41/2 feet by 6 feet, which represents the United States Army, Navy, Air Force, Marine Corps, or Coast Guard, or a POW-MIA flag, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association.
(b) Any homeowner may erect a freestanding flagpole no more than 20 feet high on any portion of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, if the flagpole does not obstruct sightlines at intersections and is not erected within or upon an easement. The homeowner may further display in a respectful manner from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the association, one official United States flag, not larger than 41/2 feet by 6 feet, and may additionally display one official flag of the State of Florida or the United States Army, Navy, Air Force, Marines, or Coast Guard, or a POW-MIA flag. Such additional flag must be equal in size to or smaller than the United States flag. The flagpole and display are subject to all building codes, zoning setbacks, and other applicable governmental regulations, including, but not limited to, noise and lighting ordinances in the county or municipality in which the flagpole is erected and all setback and locational criteria contained in the governing documents.
(c) This subsection applies to all community development districts and homeowners’ associations, regardless of whether such homeowners’ associations are authorized to impose assessments that may become a lien on the parcel.
Furthermore, Fla. Sta. §720.3075(3), provides that:
(3) Homeowners’ association documents, including declarations of covenants, articles of incorporation, or bylaws, may not preclude the display of one portable, removable United States flag by property owners. However, the flag must be displayed in a respectful manner, consistent with Title 36 U.S.C. chapter 10.
Therefore, homeowners have the right to display one portable U.S. flag in a respectful manner in compliance with Title 36, U.S.C., Chapter 10. Along with the U.S. flag, Florida law also protects HOA members’ respectful display of the state flag of Florida, the flags of each branch of the armed services, and the POA / MIA flag. The Florida law protects flags up to 4.5 x 6 feet in size and allows reasonable limitations relating to time, place, and manner of display.
In addition, the federal Freedom to Display the American Flag Act of 2005 (Pub.L. 109–243, 120 Stat. 572, enacted July 24, 2006) forbids homeowners associations from banning display of the American flag. However, the law states that an association may limit the time, place, and manner in which the flag is displayed, as long as the limitation promotes a substantial interest of the association.
Can a Florida Homeowners Association Impose Rental Restrictions or Screen Prospective Tenants?
In general, Florida law does not prohibit associations from imposing rental restrictions, so a “good faith” restriction promoting a substantial interest of the association and enforced in a non-arbitrary manner will probably be upheld. However, a board cannot unilaterally impose a restriction; it must be authorized by the association’s declaration, or by a validly adopted amendment thereof. An association must provide at least 14 days’ written notice to all members prior to any meeting at which use restrictions (including rental restrictions) are considered. Fla. Stat. §720.303(2)(c)(2). In associations with 15 or fewer members, the board can only enforce restrictions against a lot owner which were in place at the time the owner purchased his or her lot. Fla. Stat. 720.303(1).
In condo associations, amendments restricting rental rights are only effective against owners who (1) consented to the amendment or (2) purchased their units after the amendment became effective. Fla. Stat. §718.110(13).
The Florida Homeowners’ Association Act does not restrict an HOA’s ability to screen prospective tenants, if permitted by the governing documents. However, the federal and Florida Fair Housing Acts’ anti-discrimination rules make tenant screening a potentially risky pursuit for associations. 42 U.S.C. §3604(a). Even if a screening policy is not intended to discriminate based upon any prohibited factor, if the policy results in a “disparate impact” on a protected class, it may violate the Fair Housing Act and/or Florida law. Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., 135 S.Ct. 2507 (2015).
What can Homeowners do if an HOA is not Responsive to Complaints?
It’s usually best to try to resolve problems with an association by talking things out or using the association’s democratic processes, as set forth in the declaration. Under Florida law, members of an HOA have a right to attend board meetings and to be heard with regard to any matter on the meeting’s agenda. Fla. Stat. §720.303(2)(b). If at least twenty percent of a community’s members petition the board with regard to an issue, the board must hold a member meeting within 60 days for the purpose of discussing the issue raised in the petition. Fla. Stat. §720.303(2)(d).
If a board member is abusing power or acting unfairly, members can try to elect someone else for the next term or attempt to recall the board member under Fla. Stat. 720.303(10), if warranted. Alternatively, members can organize other homeowners in a campaign to limit the board’s power by amending covenants.
It’s generally a good idea to keep records of any written communications with the association and to take and preserve contemporary notes of any verbal communications. In the event of future retaliation, thorough records can help demonstrate when an association has acted arbitrarily or capriciously.
If non-judicial remedies are unsuccessful or don’t address complaints, it’s important to remember that an association itself is not the final arbiter of disputes between it and its members. If necessary, a homeowner can bring a suit against an association in the circuit court of the county in which the development is located. Fla. Stat. §720.305. Importantly, though, most claims by members against HOAs must undergo pre-suit mediation prior to filing of a complaint. Fla. Stat. §720.311.
Florida’s Homeowners’ Association Act expressly protects homeowners against SLAPP (Strategic Lawsuits Against Public Participation) filed to deter members from appearing before governmental entities on matters relating to the association. Fla. Stat. §720.304(4). The anti-SLAPP provision provides for expeditious disposition of SLAPP suits and allows members subjected to such suits to recover triple damages if a court finds the complaint meritless. Id.
An HOA is authorized to defend suits arising from its failure to meet its obligations. Except in cases involving willful non-compliance, intentional torts, or fraudulent conduct, the association itself – rather than individual officers or board members – is the proper defendant. Fla. Stat. §§720.303, 720.305. In cases involving boards that fail to fill vacant positions, members can petition the circuit court for appointment of a receiver. Fla. Stat. §720.3053.
A suit against an association can seek money damages incurred by a homeowner as a result of the association’s failure to perform its duties or “injunctive relief” – a court order compelling the association to perform duties or enforce covenants.
Condominium owners can get assistance and information by contacting the Office of the Condominium Ombudsman.
Can a Florida Homeowners Association Suspend Voting Rights and Facility Privileges of Delinquent Owners?
Associations are allowed to suspend common area and facility privileges of non-compliant members, except that the suspension cannot affect utility access, ingress and egress, or parking rights. Fla. Stat. §720.305(2)(a). Suspensions cannot become effective until the association provides the member at least 14 days’ notice of the proposed suspension and the opportunity to be heard by a committee; however, if non-compliance results from failure to pay assessments or other amounts due to the HOA, no hearing is necessary, and the suspension cannot take effect until the amount is at least 90 days past due. Fla. Stat. §720.305(2) and (3).
Voting rights may likewise be suspended, with no hearing necessary, if amounts owed to the association by a member are at least 90 days past-due. Fla. Stat. §720.305(4). Any suspension of either common facility access or voting rights must be approved by majority vote of the board. Fla. Stat. §720.305(5).
Can Homeowners Ever Sue their HOA?
Yes. HOA members are authorized to file suit against HOA’s – or against other members – for failure to comply with the association’s governing documents or with the HAA. Fla. Stat. §720.305(1). Members can also file suit against a willfully non-compliant board member or officer in his or her individual capacity. Id. If successful, a prevailing homeowner can recover his or her attorney’s fees and the portion of assessments representing the homeowner’s pro rata share of the litigation costs the association expended in defending the suit. Id. In some cases, members can also bring suit against the association or other members under the common law – whether for negligence or a breach of covenants.
How Can Homeowners Amicably Resolve Disputes?
While it’s possible for litigation to be conducted amicably, in the vast majority of cases, that’s not what happens. Instead, you get hard feelings, tons of stress, and big legal fees. So, if at all possible, it’s usually best to try to resolve disputes informally.
Sometimes, simple polite communication is all it takes. Before sending a formal letter from an attorney demanding that the board enforce a certain covenant, an owner might instead just talk to a board member or raise the issue at a member meeting. Florida’s Homeowners’ Association Act specifically grants members the right to be heard at meetings. Fla. Stat. §720.305(2)(b). Or, if there’s a disagreement over whether a planned home renovation does or does not comply with the community’s covenants, the owner and the board might try informally negotiating a compromise that satisfies all parties.
In requiring pre-suit dispute resolution, the Florida legislature recognizes that negotiated agreements are quite often better, quicker, and cheaper than litigation. Fla. Stat. §720.311. Prior to filing suit, an aggrieved party serves a written mediation notice on the other party via certified mail. The notice describes the nature of the claim and proposes potential mediators. The other party then has twenty days to respond, and they jointly have 90 days to schedule the mediation session.
Mediation is confidential, and anything disclosed at mediation is inadmissible and cannot be considered by a judge in a future civil action, except if the future action is an attempt to enforce a mediated agreement. Costs are split 50/50 between the parties, and a party who refuses to mediate is barred from recovering attorney’s fees and costs in a later case.
In many situations, having a knowledgeable, neutral third party provide an informed opinion is enough to convince an otherwise obstinate board member or homeowner to reassess a contentious position. If mediation is unsuccessful, the parties can either move forward to litigation or agree to proceed with mandatory arbitration. If you need a mediator, you can visit the American Arbitration Association - Mediation Section for a mediator referral.
Which Florida Officials Have Jurisdiction over HOAs, Management Companies, and Developers?
Florida condo associations are regulated by the Division of Florida Condominiums, Timeshares, and Mobile Homes. But no state regulatory agency directly exercises full jurisdiction over Florida HOAs. In fact, the Homeowners Association Act specifically finds that it is “not in the best interest of homeowners’ associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners’ associations.” Fla. Stat. §720.302(2). In some instances, the Department of Business and Professional Regulation can get involved in matters relating to elections, recalls, and mediation of covenant-enforcement issues. Fla. Stat. §720.302(2).
Property management companies in Florida are licensed and regulated by the Regulatory Counsel of Community Association Managers of the Florida Department of Business and Professional Regulation. Most developers fall under the jurisdiction of the Construction Industry Licensing Board, also a division of the Florida Department of Business and Professional Regulation.
The Florida Secretary of State has authority over any nonprofit and for-profit corporations in the state with regard to matters of corporate governance.
What Can Homeowners Do if They are Facing Discrimination or Harassment?
A member who believes he or she has been harassed or discriminated against in access to housing based upon race, color, religion, sex, familial status, national origin, or disability can file a complaint under the Fair Housing Act (FHA) or Florida’s Fair Housing Law (Fla. Stat. §§ 760.20). FHA Complaints can be filed with the Office of Fair Housing and Equal Opportunity of the Department of Housing and Urban Development here. Or, a civil complaint can be filed in federal district court. A complaint under the state statute can be filed with the Florida Commission on Human Relations within 1 year of the alleged discrimination act.
A member who believes he or she has been harassed or discriminated against in access to public accommodations based upon a disability can file a complaint under the Americans with Disabilities Act here. ADA complaints can be filed with the Department of Justice’s Civil Rights Division, or a civil complaint can be filed in district court.
The appropriate response to harassment will depend on the precise nature of the conduct. If the harassment rises to the level of criminal conduct, it should be reported to the local sheriff’s department. If the harassment relates to collection of debts by a debt collector, the harassed individual can bring a civil action under the federal Fair Debt Collection Practices Act (FDCPA) or Florida Consumer Collection Practices Act or report the harassment to the federal Consumer Financial Protection Bureau or Florida Financial Services Commission.