Close living quarters of condominium
living can magnify nuisances. What might not be a problem
due to separation of single-family homes can reach the
annoying and even intolerable level in a condominium.
Perhaps the most problematic condominium resident is an
unruly tenant. The tenant does not own the unit and may have
little concern for action that could be taken by neighbors
or even the condominium association. The tenant can move
without the tie of unit ownership. That can lead the
condominium association to focus on the unit owner as
creating a problem when the owner rents to an unruly tenant.
The owner may believe the tenant is a gem because the tenant
is polite and courteous to the owner and timely pays all
rent. When the association tells the owner the tenant is a
problem, the owner may think the association is simply
picking on the tenant or is opposed to rentals. If the owner
will not take action, the association may have to use its
arsenal of enforcement tools in Florida’s Condominium Act.
The association wants the owner to stop the tenant from
being a problem, but Section 718.1255 Florida Statute
mandates disputes between the association and the unit owner
requiring an owner to take action involving the owner’s unit
be submitted to mandatory non-binding arbitration rather
than court. Fortunately for the association, there is an
exception when the dispute involves eviction or other
removal of a tenant. Because the association is not a
landlord, it is unable to pursue eviction as a landlord
under Florida’s Residential Landlord and Tenant Act. That
does not mean the association is powerless to act.
The association can pursue an injunction against the tenant
to stop nuisance or damage, but most tenants simply
continue, and many do not have funds to reimburse
association legal costs. The association knows that.
As another option, the association can pursue an injunction
prohibiting the owner from continued leasing to or occupancy
by the tenant. To obtain an injunction, a plaintiff must
normally establish that there is no other reasonable relief
available to recover for or stop damage and that allowing
action to continue will result in irreparable injury. That
could be hard when the injury is an unruly tenant.
Section 718.303 Florida Statutes solves that problem
by providing an association may pursue action for injunctive
relief for violation of that statute. Section 718.303
Florida Statutes provides an association may bring an action
against a unit owner or a tenant for failure to comply with
the provisions of Florida’s Condominium Act or the
association’s governing documents. The association may
pursue an action for damages or for injunctive relief, or
both. The prevailing party in such action is entitled to
recover reasonable attorney’s fees in addition to any other
relief.
Seeking an injunction can be expensive and there is no
guarantee of victory. The association might lose and end up
paying the owner or tenant’s attorney fees. Even when
attorney fees are awarded, it is rare that a court awards
all of a party’s attorney’s fees and costs. That can make an
association reluctant to go to court. The association might
decide to fine the owner or tenant as a cheaper option.
It used to be that an association could not impose a fine
unless it had fining authority in its governing documents.
Florida’s Condominium Act was amended so that all
associations now have authority to levy fines under
Section 718.303 Florida Statutes. Associations also have
the power to suspend use of association property.
An association may levy reasonable fines for failure of the
owner or the unit occupant to comply with the declaration of
condominium, the association bylaws, or reasonable rules of
the association. A fine may not exceed $100 per violation or
$1,000 in the aggregate for a continuing violation. The
association can also suspend, for a reasonable time, right
of the owner or the tenant to use common elements and common
facilities, except for limited common elements intended to
be used only by the unit and common elements needed to
access the unit.
A fine or suspension may not be imposed unless the board of
directors provides at least 14 days written notice to the
person sought to be fined or suspended and opportunity for
hearing before a committee. The committee must be at least
three members appointed by the board who are not officers,
directors, or employees of the association, or the spouse,
parent, child, brother, or sister of an officer, director,
or employee. The role of the committee is limited to
confirming or rejecting the fine or suspension levied by the
board. If the fine or suspension is approved by the
committee, the fine is due five days after the committee
meeting. The association is required to provide written
notice of the fine or suspension by mail or hand delivery to
the owner and, if applicable, to the tenant.
The statute provides a fine is not a lien against the unit.
Knowing that, some unit owners thumb their nose at the
association and refuse to pay. That is almost always a bad
choice. The association can go to court and obtain a
judgment for the fine and that judgment can be a lien
against the unit. The association can also refuse to approve
rentals or sale of the unit until the fine is paid.
If the unit owner is more than 90 days delinquent in paying
any monetary obligation due the association, including a
fine, the association can suspend the right of the unit
owner or the tenant or anyone visiting the unit to use
common elements, except limited common elements intended to
be used solely by the unit and common elements needed for
access, until the fee or fine is paid in full. The
association can also suspend the voting rights of the unit
owner for non-payment of any fee or fine which is more than
$1,000 and more than 90 days delinquent. Suspensions of
common element use for 90 days delinquency or voting are not
subject to the 14-day notice and hearing requirements and
may be imposed by the board at a duly noticed board meeting.
Section 718.112(2)(d)2 Florida Statutes adds one more
penalty to the delinquent owner. A person who is delinquent
in any monetary obligation to the association may not run
for the board or continue to serve as a director if the
delinquency arises during his or her term in office.
Condominium associations have many options for dealing with
problem tenants. Dealing with the tenant directly is often
unavailing. When a problem continues, the association
invariably turns its focus to the unit owner. Penalties
against the owner can be significant. For that reason,
condominium unit owners should pay attention to complaints
about their tenants and not dismiss them without thorough
investigation.