BASIC STEPS TO PROTECT YOUR INDIVIDUAL RIGHTS IN A COMMUNITY ASSOCIATION
Posted SEPTEMBER 14, 2003
BY CATHY L. PURVIS LIVELY, ESQUIRE
Email: attylive@aol.com

As Americans, we have the expectation that we will enjoy individual private-property rights.  To varying degrees, this concept is at odds with homeowners’ association rules.  Individuals who purchase a home within a community association should exercise caution, as they may soon discover they have little freedom of choice regarding their own property.  Choices as to the color of the house, what trees can be planted, what vehicles can be parked in their driveway, and even what bathing attire can be worn are dictated by a select body of persons --  the Board.

Failure to abide by the rules may result in scorn, harassment, fines and attorney fees.  Those who have never resided within a community association do not understand how much control the HOA typically exercises until they become entangled with the board. As often seen, a poorly managed association drags down property values and can make the members’ lives miserable.  

More than any other factor, rules are the best and the worst aspect of community association living.  Ideally, the rules enhance property values and promote community harmony.  In reality, the rules frequently create division in a community.  It is not the rules per se, but the board’s random enforcement, along with making up new rules as they go, that results in violation of an individual’s rights.  Conflicts between the board and homeowners rapidly escalate when the board ignores individual rights and arbitrarily and capriciously enforces the association's restrictions.

You can take steps to safeguard your individual rights as a homeowner. 
 
BE INFORMED AND AWARE:  Find out as much as possible about the association before purchasing a home. Speak with residents, members of the Board, the property manager and any other persons with knowledge regarding the following concerns:

  • How is the association managed?
  • Who are the officers and board of directors?
  • Are most homeowners satisfied with how the Board is managing the community?
  • Are most homeowners satisfied with how the HOA enforces the rules?
  • How often does the Board hold meetings?
  • Do homeowners actually attend the meetings? On an average how many owners attend the meetings? 
  • Is attendance and participation at the meetings encouraged or discouraged by the governing board?
  • If there is a property manager or management company, are most homeowners satisfied with the management service?
As a member, remain informed.   The financial, political and legal conditions of your community association can affect your quality of life and value of your property. 

Public records are a good source of valuable information. In most cases, you will not need to leave your home or office, as the information is accessible via the internet.  In Florida, you can access corporate information and records at www.sunbiz.org.  On this site you can verify the status of the association and the property management company.  You can obtain the names and addresses of the board members.  In Florida you can verify that the property manager is licensed via www.myflorida.com.    The county records provide information about any lawsuits involving the association and the management company. This provides insight into both the financial conditions of the community and the board’s policy as to enforcement.  The association documents are also available in the county public records. 

When you purchase a home within a community association, you agree to the covenants, conditions and restrictions.  Review the association's covenants, codes and restrictions, which detail your rights and responsibilities as an owner. Ask yourself if you can live by them, before you purchase the home. If the documents are lengthy and confusing, seek professional advice from an attorney.

If you are a homeowner, you have the right to review the association records.  Florida statutes expressly require that the association maintain certain records, including bylaws, amendments, minutes of all meetings, insurance policies, contracts, membership list and many others.  Upon written request, the association must make the records available to a homeowner within ten days of the request. If the association fails to comply, the homeowner is entitled to minimum damages of $50 per day. Your home is an investment. You should consider the finances of the association.  Beyond reviewing the budget and financial statements, speaking with the association treasurer is wise. Questions to ask include:      

  • How much are the dues?
  • Have the dues been stable over the past few years or have there been any increases?
  • What is the history of assessments and are assessments expected in the future?
  • What are the provisions within the documents regarding increasing the dues and for assessments?
  • What services are covered by the dues?
  • Is there sufficient money in the reserve account to cover contingent and anticipated expenses, maintenance and repairs?
  • Who is responsible for the management of the association’s finances? 
As a member of the community, you should continually review the financial records of the association.  Pursuant to Florida Law, the association must prepare an annual budget. The HOA must provide copies or make copies of the budget available to the homeowners. The association must also prepare an annual financial report within 60 days of the close of the fiscal year. The financial report must be provided to or made available to all homeowners.   

PARTICIPATE:   Your rights and obligations as a homeowner and member of the association include attending meetings and participating in the community.  In Florida, all meetings, with very limited exceptions, must be open to all members. Notice must be posted in a conspicuous place at least 48 hours before meeting or 7 days if by mail, except if an emergency.  Further, Florida law mandates that the association be required to hold an annual meeting, open to all members.  Without question, most homeowners have busy schedules.  Finding the time to attend meetings and to take an active role in the community is difficult.  However, failure to participate can leave you at the mercy of a rogue board. 
 
LEGAL ADVICE/ACTION:  Association laws are complicated and, thus, legal advice is often warranted.  If you find that you are unable to resolve a conflict through the association as a homeowner, you may seek relief through the courts. Officers and directors have a statutorily imposed fiduciary duty to the homeowners. In Florida, the homeowner has a statutory right to seek legal relief against the association, a member, officer or director for noncompliance with the provisions of the statutes or the documents. The statutes do provide for attorney fees to the prevailing party.  Therefore, carefully consider the merits of the case before filing a lawsuit.  Despite the risks, when your rights have been violated and it becomes necessary to hold the board accountable for their actions, there may be no recourse but to resort to the courts.

Protecting your individual private-property rights within a community association begins with being informed, taking an active role and, if necessary, taking legal action.


Ms. Lively is a Florida licensed Attorney who represents individual homeowners in action related to enforcement and protection of their individual rights. Ms. Lively has two office locations in South Florida: 
6810 Lake Worth Road # 336
Lake Worth, FL 33467 

and also:
400 Royal Palm Way # 2106
Palm Beach, FL 33480.
Tel: (561) 649-2204