Editor’s note: Attorneys at Goede, Adamczyk, 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.
I would appreciate your input on the following items.
– L.G., Treasure Coast
Q: Is there a time limit in the statute of limitations on unauthorized non-conforming changes to exteriors of homes or driveways that would make them legal due to the length of time a HOA board or ARC committee failed to formally address them?
A: Yes. The statute of limitation would be 5 years which means a lawsuit would have to be filed within 5 years of the first day of the violation. However, if the Board has known of the violation and failed to take any steps to enforce the rule then the owner can assert the defenses of waiver and estoppel which can defeat an enforcement action brought within the 5-year statute of limitations.
Q: If a non-approved, non-conforming change to an exterior of a home or driveway has not been addressed by the board, resulting in no order issued to correct a violation of the current rules and regulations, does this set a legal precedent for any future non-conforming changes that are similar in description to be successfully made and grandfathered because the original violation was not formally addressed by the HOA board?
A: Not usually, as long as the violation that was ignored is not pervasive. A prior Board that ignored a particular violation or several of them is not going to be prevented from enforcing the restriction on a go forward basis. However, if the rule violation is pervasive, meaning many homes are in violation, such that a person might reasonably believe there was no rule against, then yes, you may have situation where the restriction is now waived. An example might be a couple of basketball backboards on homes in a 100 home community versus 20 or more.
Q: If members of the ARC committee are pressing to have the rule violations challenged and the HOA board management is dragging their feet in contacting legal counsel for direction on this matter what options are available to ARC committee members to expedite the process.
A: First, the Board should be made aware that it has a fiduciary duty to enforce the rules. If it does not want to enforce a particular rule then it should change the rule. The only options when it comes to covenants, restrictions and rules are to enforce them or change them. The Board is breaching its duty if it simply ignores the existing restrictions and rules. You have several options in this regard. First, remove the Board by recall or election and install Directors that will fulfill their duty properly. Secondly, you may have to bring legal action against the Board to force them enforce the rules. Before, that however I recommend you retain an attorney to send the Board a warning letter.
Q: How do we remove a Condominium, Cooperative or HOA board member from the board who we feel is acting improperly?
Any member of the board may be recalled and removed from office with or without cause by the vote or agreement in writing by a majority of all the voting interests. Ten percent of the unit owners may petition the board for a special meeting to consider removing a board member or members. Alternatively, with a special meeting, a board member can be removed by written agreement signed by at least a majority of the total voting interests. Please note that recalls by written agreement have a much higher success rate because the procedures are easier. A “How To” guide can be found www.myfloridalicense.com/dbpr/lsc/condominiums Note: the Division of Florida Condominiums, Timeshares, and Mobile Homes will not accept for filing a recall petition when there are 60 or fewer days until the scheduled reelection of the board member sought to be recalled or when 60 or fewer days have elapsed since the election of the board member sought to be recalled.
Richard D. DeBoest II, Esq., is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Ask questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. 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, PLLC 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.