Community Association Law Firm, Allison J. Brandt

Homeowners’ Association Act

• WHAT LIMITATIONS ARE IMPOSED BY FLORIDA LAW ON AN ASSOCIATION'S SCOPE?

  Board members can act on behalf of the HOA without a member vote regarding matters within the Association’s powers, as granted by the governing documents or statute, unless expressly limited by law or the governing documents. Florida Statute 720.303 (1).Florida law gives the Association’s declaration and articles of incorporation significant deference when interpreting Association powers.Associations are expressly prohibited from taking specific actions by the Homeowners’ Association Act (HAA), such as limiting flag display. Other activities necessitate the affirmative consent of a majority or super-majority of members, such as amending the Association’s declaration, suspending member rights, or initiating legal action in cases where the amount in controversy exceeds $100,000.The Fair Housing Act and the Americans with Disabilities Act, among other applicable federal laws, must be complied with by all association actions and governing documents. The Association’s governing documents may further limit the board’s authority.The board members’ and officers’ statutory fiduciary duty requires them to act in good faith, in the Association’s and its members’ best interests, and with ordinary caution when exercising their authority. Florida Statute 720.303 (1).Additionally, homeowners can hold board members accountable through legal recall processes and elections at annual member meetings following the voting guidelines outlined in the declaration. Florida Statute 720.303 (10).The Fair Debt Collection Practices Act (FDCPA) and Florida Consumer Collection Practices Act generally forbid property management companies from acting as “debt collectors.” In addition, Community Associations are forbidden from disclosing member information about assessments, even though Florida’s HAA does not expressly prohibit the Association from doing so.Other state and federal laws protecting confidential information may also apply to sensitive identifying information about members. Records available for member review expressly do not include confidential member information. Stat. of Florida 720.303(5)(c) (5).
• HOW ARE FLORIDA'S HOMEOWNER AND CONDOMINIUM ASSOCIATIONS RULED?

  Florida Homeowners and Condominium Associations are run by a board of directors (or just “board”). The declarant (usually the developer) chooses the first board members, who the homeowners then vote on according to the Association’s declaration of covenants (“declaration”).

  A majority of the other members choose members of the board. However, elections aren’t needed if there are fewer or the same number of qualified candidates as there are open positions. Fla. Stat. §720.306 (9).

  Members who are past due on any payments to the Association are not allowed on the board.  Similarly, members convicted of a felony are also not allowed to serve on the board.

  In turn, the board chooses officers to carry out the duties and powers of the board. Fla. Stat. §720.303 (2). Officers and directors have a duty of care to the members, so they must act in the best interests of the Association and the members and avoid self-dealing and conflicts of interest or risk termination. Fla. Stat. §§720.303(1).

  A board member must certify in writing within 90 days of being appointed that they have read the HOA’s governing documents, will do their best to follow the Association’s rules, and will uphold the fiduciary duty owed to the members. Fla. Stat. §720.3033(1) (a).

  The HAA and the community’s declaration give an HOA’s board duties and powers, such as enforcing covenants, assessing and collecting member fees, taking care of common areas, and representing the Association in legal matters.

  The Homeowners’ Association Act (HAA) says that Florida associations can do everything their governing documents say they can unless the law says otherwise. Fla. Stat. §720.303 (1).

  The Articles of Incorporation, a legal document made when the Association becomes a corporation, explain how the Association’s corporate structure works. Usually, the declaration, bylaws, or articles of incorporation state who can be an officer or board member and how long their terms last.

  Most communities have terms that last one year. See, on the whole, Fla. Stat. 720.303 (2). In addition, community members can get the Association’s corporate status and a copy of the Association’s articles from the Florida Corporation.

  The amount of control a developer has over a community’s HOA depends on how many of the community’s lots they still own. After 90% of the lots are sold, the developer gives control to the elected board. Members, not the developer, are allowed to vote for at least a majority of the board. Fla. Stat. §720.307. As long as the developer owns at least 5% of the lots, it can vote for at least one board member.

  The Association’s declaration is filed with the county land records of the county where the Association is located. The Association’s Declaration lists:

  • Association’s restrictions and covenants
  • duties and powers of the board and officers
  • how voting and elections work
  • how assessments are calculated and collected
  • any limits on the board’s or Association’s powers.

  For example, Fla. Stat. 720.303 says that lot owners and anyone who lives in a home in the Association must follow the declaration. Fla. Stat. §720.305. If a member doesn’t follow the rules, the Association can file a lawsuit against them through the board to get back the money they owe the Association or get a court order to make them follow the rules. Fla. Stat. §720.3085. The owners of lots can also act against other owners who don’t follow the rules.

  Association members have the right to vote on who should be on the board and whether or not covenants should be made or changed. At member meetings, which must happen at least once a year, people vote. Fla. Stat. §720.306 (2).

  Members can vote in person or through someone else. Fla. Stat. §720.306 (8). Proxy votes must be made in writing, signed by the member, and include information about which meeting the vote is for. Fla. Stat. §720.306(8) (a). For a vote to happen, a quorum, or at least 30% of the people who could vote, must be present unless the community rules allow for a lower percentage. Fla. Stat. §720.306(1) (a).

  The Association’s corporate structure is governed by its Articles of Incorporation.  Articles of Incorporation are legal documents prepared when the Community Association becomes a corporation.  The Articles include the term of service for officers and board members and their eligibility requirements.

  Most communities provide annual terms. Fla. Stat. 720.303(2). A copy of the Association’s articles of incorporation and information about the Association’s corporate status can be obtained for free by visiting the Florida Corporation Commission.

  Developer control of a community’s HOA diminishes as the community lots remaining under the developer’s control decrease. When only 10% of the lots remain owned by the developer, the developer turns over effective management to the elected board. Non-developer members are entitled to select at least a majority of the board. Fla. Stat. §720.307. The developer may have one board member (at least) if they control at least five percent of lots.

  The Association’s declaration is recorded with the county courthouse land records where the Association is located.  The declaration sets forth the Association’s restrictions and covenants and the duties and powers of the board and officers.  It also defines Association voting and election procedures.  Finally, the declaration outlines how to calculate and collect assessments, along with any restrictions on the capabilities of the board or Association. Fla. Stat. §720.303.

  Lot owners and occupants of homes within the Association must adhere to the declaration. Fla. Stat. §720.305.  If they don’t conform, Association, through the board, can bring action against the non-compliant member. In addition, the board can recover amounts owed to the Association or may compel compliance by court order. Fla. Stat. §720.3085. Individual lot owners may also bring actions against non-compliant owners.

  Association members vote on association business, including the election of board members and the adoption or amendment of covenants. Voting occurs at member meetings, which must be held at least once yearly. Fla. Stat. §720.306(2).

  Members may vote in person or by proxy. Fla. Stat. §720.306(8). Proxies must be written and 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).

• EXPLAIN THE SOURCE OF AN HOA'S AUTHORITY.

  A Florida Community Most of a Florida Community Association’s power comes from its declaration of covenants, articles of incorporation, bylaws, and the Homeowners’ Association Act or Condominium Act.

  The declaration is a contract between all the people living in a community. Homeowners agree to follow specific rules and restrictions and pay fees to keep common areas in good shape.

  Anyone buying a home in an association community is assumed to have agreed to the rules and responsibilities in the declaration. But an association has no power beyond what is written in its declaration or the law. Highland Lakes Property Owners Association, Inc. v. Schlack (Fla.App. 5 Dist. 1998).

• HOW DO FLORIDA HOA ASSOCIATIONS AMEND THEIR GOVERNING DOCUMENTS?

  The Florida Homeowners’ Association Act says that members must vote on changes to the association’s declarations. It takes at least a two-thirds vote to make a majority for an amendment of all members present at a meeting with a quorum. However, an HOA’s governing documents can set a different standard. Fla. Stat. §720.306(1) (b).

  When a change is approved and written down, it goes into effect. Fla. Stat. §720.306(1) (e). Members must be given copies of any changed documents within 30 days of their adoption. Fla. Stat. §720.306(1) (b).

  The rules for changing a Condominium Association’s declaration are laid out in Fla. Stat. 718.110.

• ARE FLORIDA COMMUNITY ASSOCIATIONS REQUIRED TO BE HANDICAP ACCESSIBLE?

  Florida gives disabled people the right to build access ramps if they are medically necessary, as long as the ramp is as small and unobtrusive as possible. Fla. Stat. §720.304 (5).

  Even though the Homeowners’ Association Act and the Condominium Act do not explicitly require handicapped parking and access, the federal Fair Housing Act protects member access in most cases by requiring “reasonable accommodations” to help disabled people get into housing.

• HOW ARE HOMEOWNERS ADVISED OF THE EXISTENCE OF AN ASSOCIATION?

  Before signing the purchase contract, sellers must provide prospective purchasers with a “disclosure summary.” The disclosure summary identifies the following

  • the existence of the Association
  • current assessment amounts
  • any special assessments
  • a statement that the property is subject to restrictive covenants, which can be obtained from the county land records office.

  Fla. Stat. §720.401.

  Home purchasers are usually provided with a copy of the Association’s declaration and bylaws before or at closing.

  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 does not affirmatively agree to the covenants because the declaration is recorded in the county land records. Purchasers are deemed to have “constructive notice” of the covenants at the time of purchase.

• WHAT REQUIREMENTS FOR THE RETENTION AND DISCLOSURE OF DOCUMENTS MUST AN HOA PROVIDE?

  HOAs must retain written meeting minutes for board and member meetings, including how each board member voted (except that votes for the election of officers may be conducted by secret ballot. Fla. Stat. §720.303 (3).

  The Association’s official records include its bylaws, articles of incorporation, declaration, rules, members’ names, and contact information. The official records also include all contracts used by the Association. In addition, the HOA must also maintain financial and accounting records. Fla. Stat. §720.303 (4).

  Any contract the Association makes for the provision of services must be in writing. In addition, any contract that costs more than 10% of the Association’s budget must be put out to competitive bid. Fla. Stat. §702.305.

  On the other hand, contracts with HOA employees, lawyers, accountants, architects, and community managers are not subject to this rule.

  A member must be able to look at and make copies of official records within ten business days after sending a written request—Fla. Stat. §720.303 (5).

  If the Association does not respond to a request for records, it must pay at least $50 per day. Fla. Stat. §720.303(5) (b). The Association can make reasonable rules about how often, when, and how inspections happen. Still, it can’t make a member who wants an inspection give a reason, and it can’t charge a fee if a member uses a portable device (like a smartphone) to make electronic copies. Fla. Stat. §720.303 (5).

  Associations must also give members a copy of their annual budget or let them know they can get a copy if they ask. Fla. Stat. §720.303 (6).

  The Association must generate a financial report for the previous year and make it available to members not later than 90 days after the fiscal year’s end. Fla. Stat. §720.303 (7).

  The board could also make a report of cash receipts and expenses if a majority vote approved that. Fla. Stat. §720.303(5) (d).

  Any board meeting or meeting of an architectural review committee must be open to all members unless the meeting is to talk about personnel or is with the board’s attorney to talk about things protected by the attorney-client privilege. Statute 720.303(2)(a) of Florida and (b).

  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 explain how Condominium Associations should take care of and inspect their documents (13).

• WHAT BUDGETARY REQUIREMENTS DOES FLORIDA LAW PLACE ON ASSOCIATIONS?

  Florida HOAs have to make annual budgets that include estimates of expected expenses and income and a list of any reserve accounts or funds set aside for future expenses. Fla. Stat. 702.303 (6).

  The Association’s declaration and articles of incorporation will spell out the exact steps for making budgets and figuring out assessments, and the board has to follow those rules.

  The budgeting rules in the Florida Condominium Act are more specific than those in the Homeowners’ Association Act. Every year, a condo association must make a detailed budget of its expected income and expenses, broken down by expense type and including reserve accounts for large purchases and maintenance that has been put off. Fla. Stat. §718.112(2) (f).

  Every year, all members of a Condo Association must be able to attend a meeting about the budget. Fla. Stat. §718.112(2) (e). If the budget of the group goes up,

• MUST RATE INCREASES AND SPECIAL ASSESSMENTS BE APPROVED BY THE HOA MEMBERS?

  The Association’s governing documents explain how to figure out assessments. For example, associations can’t charge fees at a board meeting unless the meeting notice, which has to be sent out at least 14 days in advance, says that fees will be discussed and gives a general idea of what kind of fees will be discussed. Fla. Stat. §720.303(2) (c).

  At any member meeting, everyone has the right to speak on any topic for at least three minutes. Fla. Stat. 720.306 (6).

  The rules of an HOA cannot be changed to increase a parcel’s share of the common assessments or decrease its share of the voting rights unless the parcel’s owner agrees to the change. Fla. Stat. §720.306(1) (c). Before a developer hands over the Association, it can’t charge special assessments without the approval of most members who aren’t developers. Fla. Stat. §720.315.

  The Condominium Act doesn’t require a vote from the members to approve special assessments, and Section 718.112(2) outlines the notice requirements.

• WHAT LAWS GIVE HOMEOWNERS AND CONDO ASSOCIATIONS IN FLORIDA THE RIGHT TO COLLECT ASSESSMENTS?

  Florida’s Homeowners’ Association Act (HAA) allows associations to collect assessments according to the Association’s governing documents. These documents must say how much each member is responsible for regarding the HOA’s budget. Fla. Stat. §720.308 (1)

  Unpaid assessments get charged interest at the rate written in the governing documents or, if there isn’t one, at 18.00%. Fla. Stat. §720.3085 (3). If the rules allow it, the Association can also charge late fees of either $25 or 5% of the past-due payment, whichever is greater.

  Members who don’t follow validly adopted HOA rules can be fined up to $100 per infraction under the HAA. Fla. Stat. §720.305 (2). Associations can charge fines daily for repeated violations, but the total can’t be more than $1,000 unless the governing documents say so.

  Fines can’t go into effect until the Association gives the member at least 14 days’ written notice of the proposed penalty and the chance to be heard by a committee. Fla. Stat. §720.305(2) (b). If the committee votes to keep the fine, it will be due five days after the vote or hearing.

• WHO IS REQUIRED BY LAW TO PAY ASSOCIATION'S HOA FEES?

  In Florida, if you live in a community that is part of the Association, you must be an HOA member. Fla. Stat. §720.301 (9). Most of the time, every lot owner has to pay assessments, which are calculated per lot. This means that a lot with two owners is only assessed once, but an owner who owns more than one lot has to pay assessments for each lot.

  Associations in Florida can collect different assessments from different classes of lots based on how developed they are, what services they need, and “other relevant factors,” as long as the governing documents allow for separate classes. Fla. Stat. §720.308(1) (a).

  If a member rents out a home or condo subject to Association fees to a tenant, the Association can attach the tenant’s rent payments to the delinquent owner. Fla. Stat. §§718.116(c), 720.3085 (8).

  When the tenant gets notice of the attachment, they have to pay the Association. Payments are put toward the tenant’s rent and the delinquent assessment balance. If a tenant gets a notice of attachment but refuses to pay the Association, the Association can file a suit to evict the tenant.

• MUST AN HOA SEND REMINDERS TO HOMEOWNERS TO PAY ASSOCIATION DUES?

  Most associations’ governing documents will also have notice requirements for when assessment bills are due. For example, before a Florida HOA can file a lien for unpaid fees or start the foreclosure process, it must give the member at least 45 days’ written notice. 720.3085 (4) and (5) of the Florida Statutes.

• ARE HOAS AND CONDO ASSOCIATIONS EMPOWERED TO EXECUTE A LIEN FOR UNPAID ASSESSMENTS AND FINES?

  Every piece of property in Florida that is part of an HOA has a lien on it to make sure that the assessments are paid. Fla. Stat. §720.305.

  HOA liens “relate back” to the date the community’s declaration was recorded. This means that, except for a first mortgage lien, they have priority over other liens. An HOA in Florida makes its lien official by putting a claim of lien in the county land records. A claim of lien must list the parcel, the owner of record, the amount owed, and the date it was due.

  In addition to unpaid assessments, an HOA lien covers any interest, late fees, collection costs, and attorney’s fees that the HOA has to pay. But any charges that are part of a lien must be approved by the declaration, and fines can’t be part of a lien unless they’re at least $1,000. Fla. Stat. §720.305 (2).

  Homeowners can fight an HOA lien by recording and giving the association a “Notice of Contest of Lien.” After that, the HOA has 90 days to file a lawsuit to enforce the lien, or it will be deemed invalid. Fla. Stat. §720.3085(1) (b).

• MUST THE ASSOCIATIONS GIVE "NOTICE OF PAST-DUE ASSESSMENTS" BEFORE FILING A LAWSUIT?

  Before the Association can file a complaint to foreclose its lien, it must give the delinquent member at least 45 days written notice of its intention to foreclose. This notice must be sent via certified mail. Fla. Stat. §720.3085 (5).

  The notice can’t be sent until at least 45 days have passed since the Association gave notice that it planned to file its lien. The notice must list how to contact an HOA representative and the amounts claimed, such as past-due assessments, interest, late fees, and attorney’s fees. An HOA can also choose to go after the lot owner for a money judgment instead of judicial foreclosure.

Board of directors

• CAN MEMBERS OF HOMEOWNERS OR CONDOMINIUM ASSOCIATIONS IN FLORIDA REMOVE MEMBERS OF THE BOARD?

  A majority of homeowners are required to vote out a board member, with or without a cause. However, a board member who a particular group of members only elected can only be removed by a majority vote of that group. Fla. Stat. §720.303 (10).

  A recall is accomplished through a written vote or an agreement signed by all voting members. Each board member affected by the recall must be put to a separate vote. Fla. Stat. §720.303(10) (j).

  When the board gets this information, it holds a meeting of its members within five business days and either approves the recall or files a petition for arbitration with the Department of Business and Professional Regulation. Fla. Stat. §720.303(10) (d). The recall is still valid if the board doesn’t hold the meeting when it’s supposed to. Fla. Stat. §720.303(10) (f).

  Vacancies caused by a recall are filled by a vote of the remaining board members unless the recall removes more than a majority of the board. In that case, the vacancy is filled by a vote of the remaining board members. Fla. Stat. §720.303(10) (e).

  The rules for recalling board members and filling vacancies may be written in more detail in the Association’s governing documents.

• WHAT RECOURSE DO HOMEOWNERS HAVE IF THE BOARD DOESN'T HOLD MEETINGS TO FILL EMPTY SEATS?

  Members can call a special meeting if at least 10% agree to do so and give notice of the meeting’s agenda, time, and place—Fla. Stat. §720.306 (3).

  Members must be told at least 14 days before any meeting—Fla. Stat. §720.306 (5). Members can also vote to eliminate some or all of the board members who aren’t doing their jobs. Fla. Stat. §720.303 (10).

  Suppose the board of an HOA doesn’t fill enough empty board seats to make a quorum. In that case, any member can ask the circuit court in the county where the association is located to appoint a receiver to run the association. Fla. Stat. §720.3053.

  The member who wants to change something must give written notice to every other member of the HOA. Then, if enough board positions aren’t filled within 30 days of the notice, the petition can go forward, and the court can appoint a receiver with all the board’s powers until the board positions are filled.

   

   

• CAN HOA DIRECTORS BE COMPENSATED, INCLUDING WHEN SERVING AS OFFICERS

  Under Florida’s Homeowners Association Act, directors and officers are usually not allowed a salary, compensation, or other financial benefits for their work for the HOA. Fla. Stat. §720.303 (12).

  The ban doesn’t apply to fees or compensation specifically allowed by the Association’s governing documents or approved in advance by a majority vote of members.

  Similarly, members of Condo Association boards and officers can’t get paid for their work “unless the bylaws say otherwise.” Fla. Stat. §718.112(2)(a) (1).

Enforcement

• CAN COMMUNITY ASSOCIATIONS IN FLORIDA CONTROL HOW HOMES LOOK FROM THE OUTSIDE?

  Homeowners and Condo Associations in Florida have a lot of freedom to decide how the outside of buildings and improvements look, as long as the community’s declaration permits them to do so (e.g., location, size, type, or appearance). Fla. Stat. §720.3035 (1).

  This could include restrictions on above-ground pools and solar panels to the color of the outside walls, fences, lawns, artificial turf, parking, and where trash cans are put (which are protected explicitly in a few states but not in Florida).

  Notably, neither the association nor an architectural review committee can take away any homeowner rights that are protected in the declaration, nor can they enforce any rules that aren’t in the declaration. 720.3035(4) of the Florida Statutes (5).

  An owner can use unfair or arbitrary enforcement as a defense against an HOA suit to enforce rules. White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla. 1979).

  In Florida, HOAs cannot stop homeowners from using “Florida-friendly landscaping” to save water. Fla. Stat. §720.3075(4) (b).

• CAN HOA OR CONDO ASSOCIATIONS IN FLORIDA STOP PEOPLE FROM PUTTING UP THE AMERICAN FLAG?

  Florida law, Fla. Sta. 720.304 (2), states, in part, “(a) Any homeowner may display one portable, removable United States flag or official flag of the State of Florida respectfully, 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

  (b) Any homeowner can put up a freestanding flagpole that is no more than 20 feet tall on any part of the homeowner’s real property, regardless of any covenants, restrictions, bylaws, rules, or requirements of the Association, as long as the flagpole doesn’t block sightlines at intersections and isn’t put up in or on an easement. The homeowner can also respectfully fly one official United States flag no bigger than 4.5 feet by 6 feet from that flagpole, regardless of any covenants, restrictions, bylaws, rules, or requirements of the Association. They can also fly an official flag of the State of Florida, the United States Army, Navy, Air Force, Marines, Coast Guard, or a POW-MIA flag. This extra flag must be the same or smaller as the American one. The flagpole and display must follow all building codes, zoning setbacks, and other laws. This includes, but is not limited to, noise and lighting laws in the county or city where the flagpole is put up and all setback and location requirements in the governing documents.

  (c) This section applies to all community development districts and Homeowners Associations, regardless of whether the Homeowners Association is allowed to charge fees that could become a lien on the parcel.

  Also, Fla. Sta. 720.3075(3) says: (3) Homeowners’ association documents, such as declarations of covenants, articles of incorporation, or bylaws, can’t say that property owners can’t put up one portable, removable American flag. Chapter 10 of Title 36 of the United States Code says that the flag must be displayed with respect.

  So, according to Title 36, USC Chapter 10, homeowners have the right to put up one portable US flag in a respectful way. In addition, Florida law protects the respectful display of the state flag of Florida, the flags of each branch of the military, and the POA/MIA flag.

  The law in Florida protects flags up to 4.5 x 6 feet in size and lets people put reasonable limits on when, where, and how they can be displayed.

  Also, the Freedom to Display the American Flag Act of 2005 (Pub.L. 109–243, 120 Stat. 572, signed into law July 24, 2006) says that Homeowners Associations can’t stop people from putting up the American flag.

  But the law says that the Association can limit when, where, and how the flag can be shown, as long as those limits serve a substantial Association interest.

• CAN COMMUNITY ASSOCIATIONS LIMIT WHO CAN RENT OR INTERVIEW POTENTIAL TENANTS?

  Generally, Florida law doesn’t stop associations from putting restrictions on rentals. This means that a “good faith” restriction that helps the association and is enforced fairly is likely to be upheld.

  But a board can’t just make a rule on its own; it has to be allowed by the association’s declaration or a validly passed change.

  Before any meeting where use restrictions (including rental restrictions) are discussed, an association must give all members at least 14 days written notice. Fla. Stat. §720.303(2)(c) (2).

  In associations with 15 members or less, the board can only make a lot owner follow the rules that were in place when the owner bought their lot. Fla. Stat. 720.303 (1).

  In Condo Associations, changes that limit the right to rent out a unit only affect owners who (1) agreed to the change or (2) bought their units after the change went into effect. Fla. Stat. §718.110 (13).

  The Florida Homeowners’ Association Act doesn’t stop an HOA from screening potential tenants if the governing documents allow it. But because of the anti-discrimination rules in the federal and Florida Fair Housing Act, screening tenants could be risky for associations. 42 U.S.C. §3604(a) (a).

  Even if a screening policy isn’t meant to be unfair because of a prohibited factor, if it has a “disproportional effect” on a protected group, it may be against the Fair Housing Act and Florida law.

• WHAT CAN HOMEOWNERS DO IF THEIR HOA DOESN'T LISTEN TO THEM?

  It’s usually best to try to resolve problems with the Association by talking things out or using the Association’s democratic processes, as outlined in the declaration.

  Under Florida law, members of an HOA have a right to attend board meetings and to be heard about any matter on the meeting’s agenda. Fla. Stat. §720.303(2)(b) (b). If at least 20% of a community’s members petition the board about an issue, the board must hold a membership meeting within 60 days to discuss the issue. Fla. Stat. §720.303(2)(d) (d).

  Fla. Stat. 720.303(10) says that if a board member is abusing their power or acting unfairly, other members can try to elect someone else for the next term or recall the board member. Alternatively, members can organize other homeowners 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 the Association has acted arbitrarily or capriciously.

  If non-legal ways of dealing with complaints don’t work or don’t solve the problem, it’s important to remember that an association is not the final judge in a dispute between it and one of its members.

  Homeowners can bring a suit against the Association in the county’s circuit court where the development is located if needed. Fla. Stat. §720.305. Importantly, though, most claims by members against HOAs must undergo pre-suit mediation before filing a complaint. Fla. Stat. §720.311.

  The Florida Homeowners’ Association Act protects homeowners from SLAPP (Strategic Lawsuits Against Public Participation) lawsuits, which are meant to stop members of an association from talking to the government about issues related to the Association. Fla. Stat. §720.304 (4).

  The anti-SLAPP provision makes sure that SLAPP suits are handled quickly and lets members who are sued in this way get triple damages if a court decides that the complaint is not valid.

  An HOA can defend itself in court, with exceptions. These exceptions include cases involving willful non-compliance, intentional torts, or fraudulent conduct. Accordingly, the Association is the proper defendant rather than individual officers or board members. Fla. Stat. §§720.303, 720.305.

  Members of boards that don’t fill open positions can ask the circuit court to appoint a “receiver” if they don’t. Fla. Stat. §720.3053.

  In a lawsuit against the Association, a homeowner can ask for monetary damages because the Association didn’t do its job or “injunctive relief,” which is a court order telling the Association to do its job or enforce the covenants.

  The Office of the Condominium Ombudsman is where condo owners can get help and information.

• CAN HOMEOWNERS OR CONDOMINIUM ASSOCIATIONS SUSPEND THE VOTING RIGHTS AND PRIVILEGES OF DELINQUENT OWNERS?

  Associations can remove members’ access to common areas and facilities if they don’t follow the rules. However, the suspension can’t affect utility access, coming and going, or parking rights. Fla. Stat. §720.305(2) (a).

  Suspensions can’t happen until the association gives the member at least 14 days’ notice and a chance to be heard by a committee. If the member isn’t following the rules because they haven’t paid their assessments or other amounts owed to the HOA, they don’t have to be heard, but the suspension can’t happen until the amount is 90 days past due. Statute 720.305(2) of Florida and (3).

  A member’s right to vote can also be taken away without a hearing if they haven’t paid what they owe the association for at least 90 days—Fla. Stat. §720.305 (4). The right to use common facilities or the right to vote must be taken away by a majority vote of the board. Fla. Stat. §720.305(5

• CAN A HOMEOWNER SUE THEIR HOA?

  Yes. Members of an HOA can sue the HOA or other members if they don’t follow the Association’s rules or the HAA. Fla. Stat. 720.305 gives them this right.

  Members can also sue a board member or officer who refuses to follow the Community Association rules. If the homeowner wins, they can get back attorney’s fees and the portion of the assessments representing the homeowner’s proportional share of the costs of defending the suit that the Association paid.

  In some situations, members can also sue the Association or other members under the common law for negligence or breach of promise.

• HOW CAN HOMEOWNERS AMICABLY RESOLVE DISPUTES?

  Amicable litigation is possible; however, it is not the norm. Instead, there are hard feelings, tons of stress, and hefty legal fees. If at all possible, it’s usually best to try to resolve disputes informally

  Sometimes, simple, polite communication is all it takes. For example, before sending a formal letter from an attorney demanding that the board enforce a specific covenant, an owner might talk to a board member instead 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 often better, quicker, and cheaper than litigation. Fla. Stat. §720.311.

  Before 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. It 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 expenses 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 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.

   

General

• WHO HAS JURISDICTION OVER FLORIDA's HOAs?

  The Division of Florida Condominiums, Timeshares, and Mobile Homes regulates condo associations in Florida. No State agency has complete control over all aspects of the HOA.

  According to the Homeowners and Condominium Association Act, establishing or imposing a bureau or other state government agency to oversee homeowners’ associations’ operations is not in the best interest of homeowners’ associations or the individual association members therein. Fla. Stat. §720.302 (2).

  The Department of Business and Professional Regulation can sometimes help with elections, recalls, and settling disputes over the enforcement of contracts. Fla. Stat. §720.302 (2).

  Regulatory Counsel of Community Association Managers of the Florida Department of Business and Professional Regulation licenses and oversees property management companies in the state. The Construction Industry Licensing Board, part of the Florida Department of Business and Professional Regulation, is responsible for most developers.

  The Florida Secretary of State oversees all for-profit and not-for-profit corporations.