TC Palm Q&A Column, December 11, 2016

By December 11, 2016Questions & Answers

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, 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 Richard D. DeBoest.

Q: A few weeks ago Mr. DeBoest stated in brief in your column that a Board cannot NOT enforce rules. I have had several conversations with our property manager about why the Board or “someone” does not routinely walk around the community to make sure a variety of rules are followed. The property manager has recently informed me that it is not the job of the Board to do these so-called “walk- arounds” as they are not being paid to do it. Our manager stated that it is up to the residents to make complaints if they see violations. (I assume that this manager thinks it is not their job either) As you know, many residents don’t want to complain for a very long list of reasons. So the question is, if the Board is supposed to enforce the rules as one of their duties, then how can they if they are unwilling to keep abreast of things that are happening on the common ground (that are not being reported)???

A: A Board does have a duty to enforce the rules and regulations. How rule violations are brought to the Board’s attention differs in communities. Some Boards do a regular patrol while some rely on complaints from other owners. There is no affirmative requirement for a Board to seek out violations but there is a duty to act on valid complaints. In regard to the property manager in my experience it is pretty typical for manager to do a walk around of the community at least once a week to check up on old issues, observe maintenance items, and yes, note and report open and obvious rule violations. This is often part the management’s contracted duties. In your case the manager maybe has not been tasked with this job. In the end the obligation to report rule violation rests with all interested parties which are the owners, the Board and the manager. It is also important to note that Owner’s must be willing to report violations and then stand behind them if it is necessary to testify in an enforcement action. I know this makes people uncomfortable but effective rule enforcement is a team effort.

Q: We have a small 5 unit condominium. Three of the owners serve on the Board. One of the owners regularly violates the rules. The Board would like to levy a fine against the person. However, we can’t create a fining committee as there is only one owner available to serve on the committee. What do we do?

A: The Condominium Act provides that after the Board levies the fine the violator must be given an opportunity for an appeal like hearing. The hearing must be held before a committee of “other unit owners” who are neither board members nor persons residing in a board member’s household. The plural use of the word “owners” indicates that the committee must be made up of more than one owner. So in your case there is only one other owner eligible to serve on the committee and that is insufficient to comply with the law. So, unfortunately I think you are stuck and basically cannot fine the owner. As such, the Board should consider other remedies such as filing for arbitration with the Division of Condominiums.

The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.