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Find Blog Articles for Florida’s Condo, HOA and the Management Industry.
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Imagine this scenario: you are on the board of directors of your association. The association has repeatedly requested that an owner pressure wash their dirty roof to bring it into compliance with the community standards, but the owner refuses to do so. The association has already sent a number of demand letters and even levied a fine and perhaps a suspension of use rights, too, but the owner still will not comply. What is the association’s next step?
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Assume that the association’s declaration contains both the permissive “self-help” remedy and the right to seek an injunction from the court that orders the owner to clean their roof or else be in contempt of court. Thus, it would appear the association has a decision to make: (i) go to court to seek the injunction; or (ii) enter onto the owner’s property, pressure clean the roof, and assess the costs to the owner. Not so fast! Recent case law from Florida’s Second District Court of Appeal affirmed a complication to what should be a simple decision, discussed in greater detail below.
In two cases decided 10 years apart, Florida’s Second District Court of Appeal decided that an association did not have the right to seek an injunction to compel an owner to comply with the declaration if the declaration provided the association the authority to engage in “self-help” to remedy the violation. Prior to a discussion of the cases, a brief explanation of legal and equitable remedies is necessary.
There is a general legal principle that, if a claimant has a remedy at law (e.g., the ability to recover money damages under a contract), then it lacks the legal basis to pursue a remedy in equity (e.g., an action for injunctive relief). In the association context, a legal remedy would be to exercise the “self-help” authority granted in the association’s declaration. An equitable remedy would be to bring an action seeking an injunction to compel an owner to take action to comply with the declaration (e.g., compelling the owner to pressure wash their roof). A court will typically only award an equitable remedy when a legal remedy (such as “self-help”) is unavailable, insufficient, or inadequate.
This distinction is first illustrated in Alorda v. Sutton Place Homeowners Association, Inc., 82 So. 3d 1077 (Fla. 2d DCA 2012). In Alorda, the owners failed to provide the association with proof of insurance coverage as required by the declaration. The association sent multiple demand letters to the owners, but they failed to comply. The declaration provided, in pertinent part, that “[t]he owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for the cost of the same in accordance with the provisions of this Declaration” (emphasis added). In accordance with the foregoing, the association had the option to purchase the insurance on behalf of the owners and assess them for the costs of same.
However, the association chose instead to file a complaint against the owners seeking the equitable remedy of injunctive relief, asking the court to enter a permanent mandatory injunction requiring the owners to obtain the required insurance coverage. The owners then filed a motion to dismiss the suit arguing that even though they had violated a provision of the declaration, the equitable remedy of an injunction is not available because the association had an adequate remedy at law. In other words, the owners argued that, because the association could have, pursuant to the declaration, undertaken the ”self-help” option by purchasing the required insurance and assessing it against the owners, they had an available legal remedy and, therefore, the equitable remedy sought (a mandatory injunction) was not available to the association. The court, citing to a different case, Shaw v. Tampa Electric Company, 949 So.2d 1006 (Fla. 2d DCA 2007), explained that a mandatory injunction is proper only where a clear right has been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law. As the association had an adequate remedy at law (the authority to purchase the insurance on behalf of the owners), the third requirement was not met. Therefore, the court held that the association failed to state a cause of action and dismissed the case. (This case might be decided differently today as it appears the insurance marketplace will not permit an association to purchase insurance for a unit that it does not own, so the legal remedy presumed available to the association would be inadequate).
Similarly, in the recent case of Mauriello v. The Property Owners Association of Lake Parker Estates, Inc., Case No. 2D21-500 (Fla. 2d DCA 2022), Florida’s Second District Court of Appeal considered the award of attorneys’ fees after the dismissal of the association’s action for an injunction. Ultimately, the court held that the owners were the prevailing party as the association could not seek an injunction because the association had an adequate remedy at law. In Mauriello, the owners failed to maintain their lawn and landscaping in good condition as required by the declaration. As such, the association filed a complaint seeking a mandatory injunction ordering the owners to maintain the lawn and landscaping in a “neat condition.” The association’s declaration contained similar language to the declaration at issue in Alorda. The declaration provided that, if an owner failed to perform any maintenance required by the declaration, the association, after written notice, “may have such work performed, and the cost thereof shall be specifically assessed against such Lot which assessment shall be secured by the lien set forth in Section 9 of this Article VI” (emphasis added). In other words, the association had the permissive “self-help” authority pursuant to the declaration.
The facts of this case were complicated by the sale of the home in the middle of the suit. The new owners voluntarily brought the home into compliance with the declaration, and the case became moot. However, the parties continued to fight over who was entitled to prevailing party attorneys’ fees. The association argued it was entitled to prevailing party attorneys’ fees because the voluntary compliance was only obtained after the association was forced to commence legal action. The owners, citing Alorda, argued that they were entitled to prevailing party attorneys’ fees as the association’s complaint never stated a cause of action in the first place. They argued that the complaint should have been dismissed at the outset because the association sought an equitable remedy (mandatory injunction) when a legal remedy was available to the association (exercise of “self-help” authority).
Florida’s Second District Court of Appeal agreed with the owners that Alorda was controlling. The Court explained that, as in Alorda, “the association’s declaration gave it the option of remedying the alleged violation itself, assessing the owner for the cost, and if the owner failed to pay, placing a lien on the property and foreclosing if it remained unpaid.” As such, the association had an adequate remedy at law and could not seek the equitable remedy of an injunction, which was initially sought by the association. Because the mandatory injunction was not available to the association, the association’s complaint failed to state a proper cause of action and, thus, should have been dismissed by the trial court at the outset. Therefore, the association was not entitled to its sought-after prevailing party attorneys’ fee award, which is otherwise granted if a party comes into compliance after the lawsuit is served.
Sections 718.303 (as to condominiums), 719.303 (as to cooperatives), and 720.305 (as to homeowners associations), Florida Statutes, contain similar language that specifically authorizes the association to bring actions at law or in equity, or both, in the event an owner fails to comply with the governing documents of the association. However, neither the Court in Alorda nor the Court in Mauriello addressed the association’s statutory authority to bring an injunction against an owner who fails to comply with the requirements of the declaration, but rather found that the association must use the “self-help” remedy since it was available to cure the violation.
Notwithstanding the Alorda and Mauriello decisions rendered by Florida’s Second District Court of Appeal, past appellate court decisions from other appellate jurisdictions in Florida have permitted community associations to pursue claims for injunctive relief against violating owners so long as a violation of the restrictive covenant is alleged in the complaint. As such, the Alorda and Mauriello cases appear to be departures from the established principle. Additionally, as both decisions came from Florida’s Second District Court of Appeal, the decisions are certainly binding on those associations within the jurisdiction of the Second District, but there has been no indication that other districts will follow suit. However, there is risk that other appellate district courts may be persuaded by the holdings of Alorda and Mauriello.
As such, if your association’s declaration contains a “self-help” provision, and your association chooses to seek an injunction against an owner rather than pursue “self-help,” the board should definitely discuss the issue in greater detail with the association’s legal counsel prior to proceeding.
Find out more about KBR Legal – If your community is looking for representation give us a call.
Kaye Bender Rembaum is a full service commercial law firm devoted to the representation of community associations throughout Florida. Under the direction of attorneys Robert L. Kaye, Esq., Michael S. Bender, Esq., and Jeffrey A. Rembaum, Esq. Kaye Bender Rembaum is dedicated to providing clients with an unparalleled level of personalized and professional service regardless of their size and takes into account their individual needs and financial concerns. Most of our attorneys are Board Certified in Condominium and Planned Development Law.
Tags: Law and Legal, Management News, SFPMA Articles
By Eric Glazer, Esq.
In a word — YES. Are all these new laws really necessary? In a word –YES. This is all happening due to a complete lack of foresight and planning by The Florida Legislature. Mandatory Reserves and Mandatory Inspections should always have been the law. I urged The Florida Legislature in May of 2018 to make reserves mandatory. Instead they waited for a building to collapse and for 98 people to die before making these common sense laws. Of course a building should require an inspection after 25 or 30 years. Of course a building should be required to make necessary repairs to prevent a potential collapse. Of course a building should be required to put away money each month for future repairs. Of course that amount should be determined by a professional architect or engineer and not an unqualified board member who has a financial interest in the outcome of the reserve study. These laws should have been required thirty years ago, as building started to boom. Instead however, The Florida Legislature always caved to the developer lobby in order to keep the cost of living in a condominium artificially cheap, and the sale of units flowing. Now, because these laws were not in place thirty years ago, current condominium owners have a lot of catching up to do financially to pay for the sins of the past.
The days of a couple or a widower from up north retiring to a high rise condominium in Florida if their sole income is social security are done and over. That cannot happen anymore. They need to look for a condominium less than three stories in height that has some reserves put away.
If your condominium is at least 30 years old and is 6 stories or higher, has no fire sprinklers or Engineered life safety system, has not yet undergone a Mandatory Phase One and Phase Two Inspection, has not made the repairs required by those inspections and has no reserves in the bank, you are now forced to either sell your condominium unit immediately or pay massive special assessments that you may not be able to afford, or even come close to affording it.
On the flip side, if your condominium is at least 30 years old and is 6 stories or higher, and already has fire sprinklers or an Engineered life safety system, has already undergone a Mandatory Phase One and Phase Two Inspection, has already made the necessary repairs, and is fully funding reserves, you have little to nothing to worry about. Your monthly assessments should remain where they are, give or take the increases in insurance that are simply astronomical.
Developers are waiting to pounce. They are focusing their attention on those condominium at least 30 years old and are 6 stories or higher, but has no fire sprinklers or Engineered life safety system, has not yet undergone a Mandatory Phase One and Phase Two Inspection, and has not made the repairs that will be required by those inspections and has no reserves in the bank. Developers will be approaching the Boards of these condominiums with offers to buy everyone’s unit for a certain price. You will either consent to selling or have to pay the costs for all these inspections, repairs and funding of reserves. For many there will be no choice at all. They will have to sell and somehow find housing elsewhere.
Like everything else, the poor people or even the average workers who had saved up enough money for a down payment on their condo and proudly purchased their unit, they will get hit the hardest. In reality, in upper class buildings, they were either putting reserve money aside all along, or worse comes to worse they can stroke a check for these increased costs. They’re OK.
This will take years to sort out. Some condos simply won’t be able to comply with the new laws and the owners will sell out to a developer. Some condominiums will opt not to sell and pass massive special assessments and/or borrow the money from a bank. Either way their expenses are going up. Many associations will be foreclosing on many of their owners who can’t afford these special assessments. I can tell you that even before these massive changes go into effect, foreclosures are already on the rise, simply due to nearly $6.00 per gallon of gasoline and out of control food prices. These new laws will start what I believe will be a tremendous increase in foreclosures, perhaps as bad as 2007 and 2008. Yet, all of it is necessary. You can’t allow buildings not to get inspected, you can’t allow building not to get fixed, you can’t allow buildings not to have fire safety measures and you can’t allow buildings to deliberately waive a requirement to put funds away each month for future structural repairs.
The Band Aid was ripped off in one shot. As a result, Florida condominiums and their owners will have some tough financial times ahead. There will definitely be gentrification in some neighborhoods. The look, feel and face of Florida will change going forward. If only these measures were passed when these buildings were being built so people would not be forced out of their homes today. There simply was no foresight and now the change won’t be smooth and gradual, but will be difficult and immediate. And yet, there’s no other way to go. A collapse like Champlain Towers can never happen again.
Tags: Condo and HOA Law
The Florida insurance marketplace is in complete disarray. Associations need to be prepared for what the next 18-24 months of a continued hard market will do for their budgets.
as they discuss the status of the insurance marketplace as it relates to property, liability, directors and officers, and umbrella/excess policies. #Webinar
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If you’re reading this, it’s likely because your condominium or homeowners association has decided to take action regarding your unpaid assessments. You’ve received the letter from an HOA collection agency and now you have some serious choices to make.
You’re facing a very difficult situation, but there is at least a thin silver lining–your association’s board of directors has decided not to send your file to the association’s attorney. Many associations make the drastic decision to jump straight to the Big Red Button when it comes time to take action about delinquency: engaging the community’s attorney to foreclose. When this happens, even if you fight it in the end, it will cost you a lot of money or your residence. It’s not a nice process but that is how it is done in most cases of owners defaulting on their obligations to their HOA/Condo. Eventually, you will pay what you owe and that will also include attorney fees and costs.
Instead, you have an opportunity now to avoid all that potential sunk money and aggravation by working with your HOA or Condo and their collections partner.
If your HOA or Condo association has engaged an ethical collection agency (like us), then you are in luck. It is almost as if the HOA has given you a second chance at redemption at a reasonable cost! Though it may seem counterintuitive to believe that a collection agency would be good news, it is. You’re not being forced to settle with an attorney and saddled with outrageous attorney’s fees. Instead, you should be able to make your community whole on a reasonable payment plan without the added costs and fees of engaging legal counsel.
An HOA collection agency such as Axela Technologies should understand that every delinquency has a story and families behind it–that the people who are delinquent do not all deserve to be foreclosed upon. An HOA collection agency should not only reach out to talk to you but should work with you and your needs. Getting on the phone to review and seek out solutions is what they do. Payment plans are often very effective and serve to not only make the association whole but increase harmony among the owners.
If you are really squeezed for funds, it may be worthwhile to consider alternative funding options, such as a Home Equity Line of Credit. If this is an option you’re thinking about, though, keep in mind that you’ll need to work quickly, because if the HOA puts a lien on your property, then there will be an obstacle to getting this credit facility.
At the end of the day, the best advice is the same advice we would have given the moment you got your first warning letter: pay attention to the notices that your management company and board of directors send you. This is one situation that cannot simply go away on its own, and should it escalate and the board sends you to an HOA collection agency, move fast. Get in contact with them and begin the process of getting yourself paid up and securing your residence.
However, if your HOA or condo association is still using an attorney to recover delinquent assessments, or is using a generic or predatory collection agency, perhaps your board can take a more appropriate response and engage Axela Technologies. We specialize in HOA and condo association collections, and take an ethical, human-focused approach when handling delinquency and recovery. Call us today to get more information for your community.
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Tags: Management News, Management Tools
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State of Florida Property Management Association; On our Website you can find on our Licensing Course Partners the Licensing Courses are offered to you to become a CAM Manager in the State of Florida!
1. Must a Florida property management company have a real estate broker’s license
YES. Key components of property management (renting and leasing) are considered a real estate activity under existing Florida real estate licensing laws. A property manager needs a brokers license if he or she is paid by commission, and is handling rentals and leases for others.
No license is required for managing personally owned properties. There is a “Property Manager” license or certificate you should have. Also, certain rental properties need a license through the Div. of Hotels and Restaurants.
2. Are there any exceptions to the requirement that a Florida property manager have a broker’s license?
YES. For example, if a property owner employs someone to manage their property, and that “employee is paid a salary”, as opposed to being paid a commission or on a transactional basis, a broker’s license is not required.
For more information about these and other Florida property management requirements and exceptions, please contact the Florida Real Estate Commission.
Before hiring a property manager to manage your Florida rental property, you should always check that he or she is licensed appropriately. You can check the license status of Florida property managers at the Florida Department of Business and Professional Regulation’s Licensee Search webpage.
3. Must Florida community association managers have a real estate broker’s license?
No. However, a Community Association Manager license is required if someone receives compensation for providing management services for the following types of associations:
4. Florida Real Estate Broker License Requirements
Florida real estate broker licensing requirements include:
5. Florida Real Estate Salesperson License Requirements
Florida real estate salesperson licensing requirements include:
6. Florida Community Association Manager License Requirements
Florida community association manager licensing requirements include:
Tags: Florida CAM Licensing, Management Business Articles, SFPMA Articles
Q: I am considering running for the board of my condominium association. However, there is a lot of work involved in being on the Board. It can be a thankless position, which discourages many owners from volunteering. Can we compensate the members of the board as a way to encourage people to serve?
A: The Florida Condominium Act states that unless otherwise provided in the bylaws, the officers and the directors shall serve without compensation. So, unless your association’s bylaws provide for such compensation, compensation is prohibited.
The Florida Homeowners’ Association Act contains similar language.
While your sentiments are spot on, boards being paid for their service is very rare in the community association realm. I do think there would be some basis for concern as to whether paid directors would be held to higher standards of legal liability, as well as whether the typical nonprofit Directors and Officers Liability Insurance Policy written to cover association directors would be available.
Q: I received the first notice of my condominium association’s annual meeting just over a month ago. The first notice included a “Notice of Intent” form that had to be submitted by any owner wishing to run for the board of directors by the stated deadline. One of the owners that submitted a Notice of Intent is behind on the payment of her assessments. However, she told our association manager that she would pay her assessments in full before the election. Can she run for the board as long as she pays her assessments before the election?
A: A unit owner desiring to be a candidate for the board must give written notice of his or her intent to be a candidate to the association not less than 40 days before a scheduled election. The law states that an owner must be eligible to be a candidate to serve on the board at the time of the deadline for submitting a notice of intent.
The Florida Condominium Act contains a number of eligibility requirements for candidates, one of which is that the candidate must not be delinquent in paying any assessment to the association. According to changes in the Act that became effective on July 1, 2021, a person is considered “delinquent” if a payment is not made by the due date of the assessment as specifically identified in the declaration of condominium, bylaws, or articles of incorporation.
Prior to the July 1, 2021 changes, an individual was not eligible if they were delinquent in the payment of any “monetary obligation” to the Association (as opposed to the current version of the law which states delinquent in the payment of assessments). For example, someone who had not paid a fine would be ineligible under the old law, the new law limits eligibility to assessment payment.
If the candidate in your community was delinquent on the 40th day before the election, this individual would not be eligible to be a candidate and cannot be listed on the ballot.
Q: Most of the members of our board will be leaving our condominium soon to go back to their Northern residences, making it very difficult for us to have in-person board meetings. Can our condominium board vote via e-mail? (M.J.)
A: The Florida Condominium Act specifically provides that members of the board may use e-mail as a means of communication but may not cast a vote on an association matter via e-mail. Although there may be certain day-to-day decisions that do not require a vote of the board that can be discussed via e-mail, any action that requires approval of the board under your condominium documents or the Act must be done at a duly noticed and open board meeting.
The good news is that the Condominium Act does allow board members to participate in a meeting via telephone or real-time videoconferencing. If a director participates via videoconference, for example, the director’s participation counts towards a quorum, and the member can vote as if physically present.
Jennifer Biletnikoff is a Board Certified Specialist in Condominium and Planned Development Law and represents condominium, cooperative, mobile home and homeowners’ associations located throughout Southwest Florida including Collier, Lee, Sarasota and Charlotte Counties. She has particular experience in covenant enforcement and foreclosure law, and has also practiced in the areas of commercial, business and tort litigation.
Tags: Board of Directors, Condo and HOA, Management News, Members Articles
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