1. Eviction of Tenants: Contrary to popular belief (at least among condominium and homeowners association directors), there is no inherent authority of community associations to evict a tenant for violations of the governing documents, including the failure to be approved in advance of occupying the unit or lot. A community association may evict a tenant of a delinquent owner if the tenant fails to pay rent to the association after a demand is made pursuant to either the Florida Condominium Act or the Florida Homeowners Association Act. However, the authority to evict tenants for violations of the governing documents must be contained in the community’s declaration of condominium or declaration of covenants. This is because only landlords generally have the statutory right to evict tenants, and a community association is not a landlord under Chapter 83, Florida Statutes, the Florida Landlord/Tenant Act. In order to remove a tenant, a community association must bring an action for injunctive relief against the owner, in court, seeking the removal of the tenant by the owner. Disputes regarding the removal of a tenant by a condominium association are not subject to arbitration before the Division of Florida Condominiums, Timeshares and Mobile Homes, but tenant disputes are subject to pre-suit mediation by homeowners associations. Associations should consider amending their declaration of condominium or covenants to specifically provide for eviction authority.
2. Lien for Enforcement of Maintenance or Damage to Association Property: An owner or his/her tenant, guest or family member damages the common elements or common area, or the owner fails to maintain his/her unit and the association must enter the unit to perform the maintenance or repair to protect the common elements or the other units. In our experience, in each of these scenarios the board of directors frequently assumes the association may record a lien against the owner’s unit for the expenses incurred by the Association to maintain or repair the common elements/common area or the owner’s unit. However, often time that is not the case. The lien of a community association secures the payment of assessments for “common expenses.” Common expenses are defined in the association’s governing documents and the applicable statute. However, other costs incurred by a community association with respect to enforcing an owner’s maintenance obligations or repairing damage caused by the negligence of an owner or his/her family members or guests are not necessarily secured by a lien against the unit or lot. The community association’s governing documents must specifically authorize the association to “assess” the owner for these costs, and to record a lien for non-payment. Therefore, we suggest that boards of directors carefully review their governing documents with their association counsel to determine the extent of the association’s assessment and lien authority before the association incurs substantial expense to enforce the maintenance obligations of a unit or lot owner. Additionally, in the case of damage caused by the negligence of a unit or lot owner, if the governing documents authorize the association to charge the owner and/or impose a lien for such expenses, the documents will frequently provide that the association must attempt to make an insurance claim and obtain proceeds before it may assess or otherwise charge the costs to an owner.
3. Delinquency Reports: Delinquency reports are not confidential. They are part of a community association’s official records, they are subject to inspection by other owners and they may (and should) be openly discussed at Board meetings when the Board is making decisions with respect to delinquency situations. Specifically, the Florida Condominium Act and Homeowners Association Act provide that an association’s official records must include a statement of the account for each owner designating the due date and amount of each assessment, the amount paid on the account, and the balance due. However, be aware that “deadbeat lists” are strictly prohibited by Florida consumer protection laws and a community association is prohibited from posting a list of delinquent owners for the purpose of enforcing or at- tempting to enforce the collection of assessments.
4. Election of Directors by Secret Ballot: While the Florida Condominium Act provides that elections must be by secret ballot, elections in a homeowners association are not always by secret ballot. It simply depends on the provisions of the particular homeowners association’s governing documents, and governing documents must be analyzed on a case-by-case basis because they are not all the same. The Florida Homeowners Association Act provides that elections of directors must be conducted in accordance with the procedures set forth in the governing documents of the association. Therefore, each homeowners association must review its governing documents to determine if the election is by secret ballot. If the governing documents permit voting by members who are not in attendance at the meeting by secret ballot (i.e. secret ballot in advance of the election), the ballots must be placed in inner and outer envelopes and the outer envelope must be marked with the name, address and signature of the lot or parcel owner casting the ballot, like a condo-style election per a recent amendment to the Florida Homeowners Association Act. Do not assume that a homeowners association has the inherent right to conduct an election by mail-in or delivery of secret ballots by members not in attendance at the election meeting. Again, the authority to conduct an election in such manner must be set forth in the association’s governing documents.
5. Access to Units/Lots: The Florida Condominium Act provides as follows with respect to access to units: The association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit. The Florida Condominium Act also addresses a condominium association’s authority to enter an “abandoned unit”, as defined by the statute. However, the Florida Homeowners Association Act does not provide a homeowners association with any authority to enter a lot or home to inspect the property or to prevent damage to the common area or other lots. This authority must be contained in the homeowners association’s declaration of covenants. Accessing or entering a lot without express authority could result in liability to the association in the form of trespass and damages. Therefore, we suggest that homeowners associations consider amending their declaration of covenants to provide the association with authority to access a lot.
By Allison L. Hertz, Esq., Rosenbaum Mollengarden PLLC