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Jeffrey Rembaum, Esq., Kaye Bender RembaumNov 20, 20236 min read

Is It Time to Consider Removing an Association’s Right of Self-Help to Cure an Owner’s Violation from the Declaration?

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Through the years Florida’s community associations have relied upon the court decisions that had routinely agreed that the provisions of Florida Statutes that expressly authorize an association to entitlement to an injunction (i.e., a judicial order requiring a person to take action) superseded the common law standard of the requirement that there be no adequate remedy at law before a party could seek an injunction. In other words, an association could pursue injunctive relief and seek a court order to force an owner to wash their dirty roof even if the governing documents also permitted the association to enter upon the lot and cure the maintenance violation by cleaning the roof (this remedy is often called “self-help”).

However, due to rulings from both the 2nd District Court of Appeals in April 2022 and now the 6th District Court of Appeals in August 2023, that may no longer be the case. As you may recall, the April 2022 appellate case requiring a community association to first exhaust its permissive right to use “self-help” and cure an  owner violation of the covenants before seeking an injunction was addressed in the May 2023 edition of the Florida Community Association Journal and can be found online at within Rembaum’s Association Roundup’s past articles.

This second appellate case, in August 2023, was decided in favor of the homeowner who failed to maintain their property, leading the association to seek an injunction from the court in an effort to compel the homeowner to comply with the provisions of the declaration. In this case, the declaration provided the board of directors the choice of i) “self-help” for the association to enter upon the lot to cure the maintenance violation, or ii) seeking an injunction from the court to compel the owner to maintain their property. Considering this particular litigation went on for 10 years, the attorney fees and costs likely to be assessed against the association could end up costing significantly more than if the association had fixed up the property in the first place. However, historically courts would grant injunctions in favor of associations to compel property owners to comply with the terms of the declaration when the clear language of the covenants provided the board a choice, to self-help or to seek an injunction. Therefore, it is critical for every board member and manager to understand why this is so.

There is a long-standing, legal common law principle that stands for the proposition that when a party has an adequate remedy at law, it must be fully and completely exhausted before such party can seek an equitable remedy, such as an injunction. In the recent appellate case from August 2023 (McConico v. Morgans Mill Property Owners Association, Inc., Case no., 6D23–1213) the association sought an injunction against the homeowner because the homeowner failed to maintain her property in a neat and attractive manner. The declaration even had the following provisions: 

The owner of each lot shall maintain the exterior of the residence in the lot at all times and maintain it in a neat and attractive manner and as provided elsewhere herein. Upon the owner’s failure to do so, the association may have its option, after giving the owner written notice for a period of 30 days, to… perform such reasonable maintenance and make such repairs, as may be required and deemed necessary to restore the neat and attractive appearance of the lot and the exterior of the residence located thereon. The cost of any of the work performed by the association upon the owner’s failure to do so shall be immediately due and owing from the owner of the lot and shall constitute an individual assessment against the lot on which of the work was performed, collectible in a lump sum, and secured by the lien against the lot as herein provided.

Rather than take advantage of the “self-help” remedy contained in the declaration and thus assume the initial cost and expense, the board instead relied on section 720.305, Fla. Stat., which authorizes at law or an equity, or both, an association to bring an action in court (once the pre-suit mediation process has been utilized) to address the alleged failure by an owner to comply with the requirements of chapter 720 F.S. or the governing documents of the association. In fact the trial court agreed with the association, and in the final judgment found that the owner “failed to maintain her lawn and landscaping, exterior of the home and her driveway as required by the declaration…” Based on such finding, the trial court ordered the homeowner to clean, maintain, and repair the various aspects of her property.

However, the appellate court strongly disagreed with the trial court decision and applied the following long-standing principal:

…in order to establish entitlement to a mandatory injunction, there must be a clear legal right which has been violated, irreparable harm must be threatened, and there must be lack of an adequate remedy at law….

The appellate court determined that because the owner correctly argued that since the declaration provided the association the option of using “self-help” and performing the necessary maintenance and repairs at the association’s initial expense, the association had an adequate remedy at law, which needed to be exhausted before seeking an injunction.

It is interesting to note that, in the dicta of this case (which is not binding, but just a persuasive authority), the appellate court makes mention that had the association attempted to perform such a maintenance and the owner acted to prevent the association from entering the property, then seeking the injunction may have been proper. But that is not what happened, and therefore the appellate court ordered that “…it was error for the trial court to resort to equity and enter a mandatory injunction…”.

Based on this appellate ruling, the important question is, what is an association to do when it has a permissive but not mandatory ability to remedy a homeowner’s non-compliance by using “self-help” to enter upon the lot and cure the owner’s violation? In this instance the association will need to strongly consider an attempt to fix the problem first before seeking the injunction, or perhaps the better answer is to consider completely removing the “self-help” provision from the declaration.

Please be sure to discuss these extremely important cases with legal counsel familiar with community association law before seeking an injunction to compel an owner to maintain their property, most especially when your association‘s declaration provides for any type of “self-help” remedy. If not, then the association could end up spending significant fees in an effort to seek an injunction only to be stymied in such effort, which could also result in the association being responsible for the attorney’s fees and costs incurred by the owner if such owner is the prevailing party in the legal action.

(Written by Jeffrey Rembaum (Kaye Bender Rebaum) and reprinted with permission from the November 2023 edition of the “Florida Community Association Journal“.)

Jeffrey Rembaum, Esq. of Kaye, Bender, Rembaum attorneys at law, legal practice consists of representation of condominium, homeowner, commercial and mobile home park associations, as well as exclusive country club communities and the developers who build them. Mr. Rembaum is a Certified Specialist in Condominium and Planned Development Law. He is the creator of ‘Rembaum’s Association Roundup’, an e-magazine devoted to the education of community association board members, managers, developers and anyone involved with Florida’s community associations.  His column appears monthly in the Florida Community Association Journal. Every year since 2012, Mr. Rembaum has been selected to the Florida Super Lawyers list and was also named Legal Elite by Florida Trends Magazine. He can be reached at 561-241-4462.