Q&A – Community Association or HOA (Daniel Pilka)
How do I Sue my Homeowners Association?
In Florida, before a homeowner can sue their homeowners association for failing to perform its duties and obligations either under its governing documents or Florida statutes, the homeowner must first send a letter to the homeowners association by certified mail, requesting that the homeowners association submit to pre-suit mediation in order to try to resolve the dispute between the homeowner and the association without the necessity of litigation. The law that governs pre-suit mediations is set forth in Florida Statute §720.311. The statute is quite specific on what the party seeking pre-suit mediation must include in the letter. In fact, the statute contains a form that either the association or the homeowner can use verbatim in requesting pre-suit mediation. In preparing the letter, the homeowner will also need to provide the association with a list of five (5) prospective mediators who must be certified by the Supreme Court to act as a facilitator in the pre-suit mediation conference. You can locate the names of prospective mediators on the internet or by contacting your local Bar Association. In addition, if you are considering bringing legal action against your association, we at Pilka, Adams & Reed would welcome the opportunity to discuss your issues with you in order to help direct you to the best resolution possible to address your problems and concerns.
What Does an HOA Attorney Do?
Oftentimes, when a homeowners association hires an attorney to act as the association’s general counsel, all the homeowners believe that the attorney represents each of them as members of the homeowners association. However, that belief is mistaken. When an association hires an attorney, the attorney’s goals and responsibilities are to represent the Board of Directors for the Association. As the Board of Directors’ attorney, it is the attorney’s responsibility and obligation to make sure that the Board of Directors perform their legal and fiduciary obligations to the homeowners as required by Florida statutes and the Association’s governing documents. In this capacity as the homeowners association’s attorney, the attorney will provide the Board of Directors with legal advice and counsel when addressing association matters. The attorney will also draft legal documents for the association including Amended Declarations of Covenants, Conditions and Restrictions, Bylaws, Resolutions, and other types of legal documents. In addition, the attorney typically also assists the association in enforcing its Rules and Regulations when they are violated by the homeowners. Finally, the association’s attorney typically will also assist the association in collecting unpaid assessments owed by delinquent homeowners.
What to do if the HOA Sues You?
When the association initiates legal actions against a homeowner, the homeowner has the legal obligation to respond to the Summons and Complaint in a timely fashion. Typically, this is within twenty-one (21) days after being served with the Summons and Complaint. If the homeowner fails to respond within that 21 days, then the association has the right to have a default entered against the homeowner, which means that upon it being entered, the homeowner cannot contest liability any further, and may also be barred from challenging damages, particularly if the association is suing for unpaid assessments.
As a result, when a homeowner is served with a Summons and Complaint, they must act quickly in order to determine what the nature of the lawsuit is and how they should proceed. Under such circumstances, we at Pilka, Adams & Reed would urge you to seek the advice of legal counsel promptly in order to determine what your legal rights are, and how you should proceed in addressing the Summons and Complaint. Time is of the essence so these matters should always be attended to promptly.
If you are served with a Summons and Complaint by your association, we at Pilka, Adams & Reed would welcome the opportunity to meet with you to review the Summons and Complaint and advise you on the best way for you to proceed in order to properly protect yours, your family’s and your property’s interest.
Can an HOA Board Member be Sued Personally?
In general, an HOA Board member cannot be personally sued for the act in which he or she engages as a member of the Board of Directors for the association.
Florida Statute §617.0834
Officers and directors of certain corporations and associations not-for-profit; immunity from civil liability –
(1) An officer or director of a non-profit organization recognized under s.501(c)(3) or s.501(c)(4) or s.501(c)(6) of the Internal Revenue Code of 1986 as amended, or of an agricultural and horticultural organization recognized under s.501(c)(5) of the Internal Revenue Code of 1986 as amended, is not personally liable for monetary damages to any person from a statement, vote, decision, or failure to take action, regarding organizational management or policy by an officer or director, unless:
(a) the officer or director breached or failed to perform his or her duties as an officer or director; and
(b) the officer of director’s breach or failure to perform, his or her duties constitutes:
(1) a violation of the criminal law, unless the officer or director had a reasonable cause to believe his or her conduct was lawful or had no reasonable cause to believe his or her conduct was unlawful. A judgment or other final adjudication against an officer or director in any criminal proceeding for violation of the criminal law estops that officer or director from contesting the fact that his or her breach, or failure to perform, constitutes a violation of criminal law, but does not stop the officer or director from establishing that he or she had reasonable cause to believe that his or her conduct was lawful or had no reasonable cause to believe that his or her conduct was unlawful;
(2) a transaction from which the officer or director derives an improper personal benefit, directly or indirectly; or
(3) recklessness or an act or omission that was committed in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety or property.
(2) For the purpose of this section, the term:
(a) “recklessness” means the act or omission to act, in conscious disregard of a risk:
(1) known or so obvious that it should have been known, to the officer or director; and
(2) known to the officer or director, so obvious that it should have been known, to be so great as to make it highly probable that harm would follow from such action or omission.”
It is well established in Florida that absent fraud, self-dealing, and betrayal of trust, directors of associations are not personally liable for decisions they make in their capacity as directors of an association. Perlow v. Goldberg, 700 So.2d 148 (Fla. 3d DCA 1997) (finding directors of condominium associations not individually liable for actions and governance of condominium association); Taylor v. Wellington Station Condominium Association, Inc., 633 So.2d 43 (Fla. 5th DCA 1994) (finding that in general, corporate directors and officers cannot be personally liable for corporate acts absent actual wrongdoing in the form of fraud, self-dealing or unjust enrichment to trigger individual liability); Munder v. Circle One Condominium Association, Inc., 596 So.2d 144 (Fla. 4th DCA 1992) (reversing lower court’s finding of individual liability by condominium developer). Similarly, §617.0834(1), Florida Statutes, (2019) and §607.0831(1), Florida Statutes, (2019), provide insulation for condominium association directors from liability in their individual capacities absent fraud, criminal activity, self-dealing or unjust enrichment. Sonny Boys, LLC v. Asnani, 879 So.2d 25, 28 (Fla. 5th DCA 2004).
Can an HOA Evict a Homeowner?
Typically, the homeowners association has no legal authority or right ever to evict a homeowner from their property. However, if the property owner leases its property to a third party and then fails to pay the assessments, the association does have the right to then request that the delinquent homeowner’s tenant pay all rents to the association until the unpaid delinquencies are satisfied and paid. If the tenant refuses the association’s request for the rental payments owed by the delinquent homeowner, then pursuant to Florida Statute §720.305, the association would have the legal authority to evict the tenant just like a landlord would when the tenant fails to pay rent in a timely fashion.
Do HOA Rules Hold Up In Court?
If the association’s rules and regulations as set forth in their Declarations of Covenants, Conditions and Restrictions are unambiguous and clear, then the courts will enforce the rules and regulations set forth in the Declarations, unless those rules and regulations otherwise violate provisions of Florida statutes.
However, if the association’s rules and regulations are ambiguous or unclear, then the courts will be obligated to interpret those rules and regulations in a light most favorable to the homeowner and their property rights. Furthermore, if the association does not enforce its rules and regulations in a consistent and uniform fashion, then the homeowner could challenge the enforceability of those rules and regulations based upon the claim that the association is selectively enforcing those rules and regulations in an arbitrary and capricious fashion.
Can You Opt Out of Your Homeowners Association?
When a person chooses to purchase a home in a deed-restricted community, they become contractually obligated to be bound by the terms and conditions of the Declarations of Covenants, Conditions and Restrictions which run with the land. As a result, if the association has already been created and the Declarations of Covenants, Conditions and Restrictions have been recorded in the Public Records for the county where the property is located prior to the homeowner buying his property, then there is no legal authority to allow the homeowner to opt-out of the homeowners association. Furthermore, even if the homeowner elects not to take advantage of the amenities provided by the association, the homeowner still has the legal obligation to comply with all the rules and regulations of the association, including paying any and all assessments due.
What does a community association or HOA attorney specialize in?
A general full-service HOA attorney will have to be familiar with real estate law and should be experienced in litigation.
How to find an experienced community association or HOA attorney near me?
Search the internet, talk to other community associations, and talk to property management to get information on their attorneys.
What legal issues can arise within a community association or HOA?
Anything that occurs in the real world can arise within the association. Enforcement (contract law), property lines. Collection matters to get involved in and draft legal paperwork.
Can an HOA attorney help with disputes between homeowners and the association?
The HOA attorney should try to help between the association and the homeowner and should create a positive, enjoyable environment while respecting others in the community.
What is the role of an attorney in drafting and amending HOA bylaws?
The purpose is to try to assist the legal document, foresee problems that may arise in the future, so they know how to deal with them, and also ensure the documents are up to date since laws change constantly.
How to address non-compliance issues within a homeowner’s association?
Look over the governing documents and look at Florida statutes on how to deal with violations.
What are the legal responsibilities of a community association attorney?
Properly advise the board of directors of their legal responsibilities.
How much does it cost to hire a community association or HOA attorney?
$275 an hour for services. For general civil litigation, $350.
What steps should be taken during legal matters involving a community association or HOA?
The biggest responsibility an attorney has is to properly communicate with their clients as matters are progressing, advise them, and always give them options for their decision-making.
What is the process for enforcing rules and regulations within an HOA?
Depending on what is in the declarations, you usually have different ways to enforce them. 1) You can fine homeowners up to $1,000 for not complying with rules. 2) ‘Self-help’, the association can give notice to a homeowner to clean their property, if the homeowner does not comply, the association can perform the cleaning and cost as an assessment. 3) Sue
How to handle legal challenges related to common areas in a community association?
People have a right to use common areas in an association, but they also have a responsibility to use these common areas in a way that does not interfere with others’ rights.
What types of disputes can a community association attorney mediate?
Any issue between an association and homeowner or unit owner, and any dispute between the DBPR and association.
Are there alternative dispute resolution methods available for HOA issues?
Yes, the law provides for mediation alternative dispute resolution under statutes.
Can a community association attorney help with architectural and design review matters?
Yes, but the attorney shouldn’t really have to. Try to set up associations so they operate with a minimal amount of attorney involvement.
What legal considerations are involved in managing community association finances?
It changes. As a matter of fact, the Florida legislature just passed a new act creating all types of potential criminal penalties for misuse of association.
How to navigate legal issues related to assessment collection in an HOA?
The HOA (720.3085) statute and Condominium (718.113) statute inform attorneys how to navigate legal issues related to assessment collection.
Can a community association attorney provide guidance on fair housing compliance?
Yes, a community association attorney should be familiar with the Fair Housing Act and the American Disability Act to provide reasonable accommodation.
What role does an attorney play in community association governance?
The attorney’s responsibility is to make sure and direct the board of directors to ensure they do their job properly and if the members of the community do not conduct themselves according to the orders of the declarations, to assist the board of directors to make sure they do comply.
How can a community association attorney assist with the transition from developer to homeowner control?
It is indispensable to hire an attorney during the transition process because the attorney will be able to look at everything to make sure that the developer has performed all his duties and responsibilities and to make sure there are no surprises out there. You will need an attorney to go over financial records, legal documents, and go over development documents as well.
