Article Courtesy of The Tallahassee Democrat
By Kristin A. Gardner
Published September 30, 2018
One of the most common questions I get from my condominium
and homeowners’ association clients is, “How do we enforce our governing
documents against violating homeowners?”
Covenant enforcement is often a huge headache for volunteer boards of directors,
and finding a balance between being a nice neighbor and protecting your
community’s property values can be a struggle for some boards.
Some board members shy away from (or simply don’t take the time to) putting
their neighbors on notice when they are in violation of the restrictive
covenants. However, condominium and HOA boards have a fiduciary duty to the
homeowner members of the association to act in their best interest, and
therefore boards should be proactive in enforcing the restrictions that were put
in place to protect the property values of the neighborhood.
The most effective way for boards to do this is to have clear enforcement
policies in place so that they can be ready to handle covenant violations in a
uniform and efficient manner.
The best practice is for community association boards to work with an attorney
to assist the board in adopting action steps to take when homeowners are in
violation of a community’s restrictive covenants or fail to pay required
assessments or dues.
If a homeowner has failed to pay assessments, it is very important for
associations to have a collections’ policy in place so that the board can take
the proper action to collect the unpaid assessments in a timely manner and in
compliance with the specific requirements of Florida Statutes.
Florida condominium and homeowners’ associations have several options available
to them to recover unpaid assessments, including the ability to record claims of
lien against properties and to file actions in court for lien foreclosure and/or
damages against owners’ who fail to pay assessments. Associations should consult
an attorney to determine their legal rights in this regard.
As for other covenant violations, such as violation of the association’s
architectural controls or other restrictions found in the association’s
governing documents themselves (i.e. Declarations of Condominium or Declarations
of Covenants and Restrictions for HOAs), associations should adopt enforcement
policies with steps and timelines to adhere to when handling violations.
For example, the first step could be sending a friendly notice letter of the
violation, which states the specific restriction that is being violated and a
timeframe in which the violation must be cured. If the violation continues, a
second notice or even an attorney letter could follow.
From that point, the association could pursue available remedies such as the
issuance of the suspension of the use of the common areas or fines pursuant to
the procedures outlined in the Florida Statutes, and/or the initiation of legal
proceedings such as non-binding arbitration, pre-suit mediation or litigation –
depending on the nature of the violation and whether the association is a
condominium or a homeowners association.
Whatever course of action the association board chooses to take in the
enforcement of its governing documents, it needs to make sure that it does so in
a consistent and uniform manner against all owners.
If the owners in the community understand that the board has an enforcement plan
in place and that it is proactively taking the necessary steps to remedy the
violations, then the owners will be less likely to violate the covenants and
restrictions, or will at least be more likely to cure the violation in a timely