Editor’s note: Attorneys at Goede, DeBoest & Cross, PLLC, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.
Responses by Steven J. Adamczyk.
Q: Our homeowners association governing documents provide that the owners are responsible to maintain, repair and replace the garage doors. I received a letter from the HOA demanding that I pressure wash the door because it is dirty. In my opinion, it is not dirty and I had it cleaned six months ago. Can the Board force me to incur this unnecessary expense? – C.S., Stuart
A: I have dealt with this problem a number of times and the answer depends on the strength of the governing documents. If the documents require the owner to maintain the garage door, that would include cleaning and removing dirt. The two real questions are, however, a) who decides what is clean; and b) what can the association do about it?
First, ambiguous documents can end up costing both sides a lot of unnecessary expense. Some governing documents provide that the Board “in its sole and absolute discretion” shall determine the timing and necessity of cleaning. If this language is in your governing documents, the Board’s discretion will likely control unless the Board is being arbitrary or wholly unreasonable. If this language is not in your governing documents, there may be a question of fact whether the door is dirty.
Second, if the cleanliness is a violation, the Association could levy fines or amenity suspensions. The fine could be $100 per day of non-compliance and it is possible the Association could obtain a lien against the property for an unpaid fine, the cost of which would far exceed simply having the garage cleaned. Additionally, the documents could provide the Association with a self-help remedy. If the documents provide, the Board could provide notice and send a contractor on to the lot to clean the garage door. The Association may be able to levy an assessment for these costs or may pursue small claims to recover the costs.
From the Board’s perspective, enforcing cleanliness violations can be troublesome and expensive if the documents do not provide clear authority on the above issues. The Association can pursue an amendment to provide necessary clarity. From the owner’s perspective, there may be a number of defenses available to you, but ultimately any litigation on this specific issue would require mediation and litigation, the cost of which greatly exceeds the cleaning.
Q: There is a vacancy on our Board of Directors and the Board has informally asked me to serve as a Director. In anticipation, the President is sending me financial records and what appears to be confidential information in hopes that I will side with him on certain issues. Is this proper? – BD, Fort Pierce
A: It depends on what information was provided to you. Before you are on the Board, you are not a Director and certain things, like attorney client privilege, would not extend to non-Directors. So if the President is sending information protected by attorney-client privilege, or sending other protected documents such as personnel records or lease applications, that would be improper because that information is confidential from access to owners.
That being said, if the President is sending you financial records, bank statements, non-privileged emails or background information on upcoming votes, there is no issue. Any owner is entitled to access financial records and other communications which constitute official records, so you would not be obtaining any proprietary or confidential information.