Questions & Answers Keep Me Informed!
Q. What state agency governs homeowners’ associations? We pay homeowners dues faithfully every year and our roads are dirt. The HOA is not doing what they should to maintain our roads and I would like to have them investigated for mismanagement of funds. We have recently learned that there is no money left.
A. Unlike condominium associations regulated by the Florida Department of Business and Processional Regulation (DBPR), there is no state regulatory body to ensure that HOA's operate properly. Florida Statute 720.302(2), which generally applies to HOA’s operations, states: "The Legislature recognizes that it is not in the best interest of homeowners’ associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners’ associations. However [. . .] the Legislature finds that homeowners’ associations and their individual members will benefit from an expedited alternative process for resolution of election and recall disputes and presuit mediation of other disputes involving covenant enforcement and authorizes the department to hear, administer, and determine these disputes as more fully set forth in this chapter.” If association funds have in fact been mismanaged, it may be worthwhile to recall the Board.
Q. Can an HOA file a lien or foreclose on your property for a rule they do not enforce on other parcels (property owners) such as parking a vehicle on the side of the yard, keeping the recycle bin in front of my garage, putting a sofa out on the road for the garbage people to pick up, or parking vehicles in front of my home?
A. With regard to an HOA’s ability to lien or foreclose on a property for a rule violation, the answer is yes, but it depends. Florida law permits HOAs and condominium associations to levy fines against its members, including as a result of actions by their tenants or guests who violate the Declaration, Articles of Incorporation, or Bylaws. The fines may not exceed $100 per day, and may not exceed a total of $1,000. While fines in a condominium association may not become a lien against the unit, when fines in an HOA reach or exceed $1,000, they may be converted into a lien. This lien may subsequently be foreclosed upon. As to enforcement of rules in a community, violations must be dealt with consistently and uniformly. Should an association fail to do so, the slippery slope of non-enforcement may cause it to lose the right to enforce specific rules by way of “selective enforcement.” The selective enforcement defense will block the ability to take action for certain rule violations if they are not enforced properly.
Q. I just moved into my grandfather’s condo. The exterior maintenance is severely lacking, and the $285 a month assessment is said to only cover flood insurance. The association does not hold meetings (ever), nor have they provided any account for funds paid. The president doesn’t live here, and the only other board member is the secretary she claims in name only. For $285 a month I would expect decent lawn care repairs after storm and accountability for funds.
A. First and foremost, because you are not a unit owner your status at the association is classified as a guest. Unfortunately you have no authority to enforce within the association unless you have a lawful Power of Attorney, or are a record title holder. That being said, with regard to an association’s obligations concerning meetings and maintaining common areas, Florida Statutes and the association’s governing documents control these arenas. Florida Statutes require a condominium’s board to implement their authority as prescribed by the governing documents. While members’ meetings must occur at least once per year (where the association’s annual budget will be formulated including costs to maintain common units), the board may hold meetings as dictated by the association’s governing documents. Board meetings may be required at certain intervals, or may be held solely at the board’s discretion to manage matters within the community. With some exceptions, unit members are typically permitted to attend board meetings and speak about items on the agenda. As to the exterior maintenance and lawn care, an association’s obligations to maintain and repair common areas will be listed in the governing documents. For those areas under the purview of the association, bringing issues to their attention will generally be sufficient to remedy the problem. More extreme measures include, but are not limited to, removal of a board member for nonperformance, or amending of the association’s governing documents may be required.