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, civil litigation, estate planning and commercial transactions.
Q: We live in HOA in Jensen Beach. We have 3 restrictions that the board is not enforcing: (a) leases can’t be for less than 6 months but owners are renting their homes via Air B&B on a weekly and monthly basis, (b) a home must be occupied by the owner during the first 2 years of ownership, and (c) “lettered” commercial vehicles cannot park in our community. How do we get the board to enforce the restrictions?
-J.N., Jensen Beach
A: If the Board is not enforcing the Association’s restrictions, covenants, and rules and regulations, then the Board is breaching its fiduciary duty. Since this is a dispute between an association and a parcel owner regarding covenant enforcement disputes, you may attempt to force the Board to meet their fiduciary duty by following the procedures set forth in 720.311(2)(a), which requires presuit mediation in connection with such disputes, as presuit mediation is a requirement prior to you having the right to file a lawsuit. Specifically, you would need to send the Board a letter (the form of which is prescribed by such statute) that must include, among other things, a formal demand to resolve the dispute through presuit mediation, the nature of the dispute to be mediated, the authority supporting a finding of a violation as to the dispute, and also a list of 5 certified mediators who are believed to be neutral and qualified to mediate the dispute. The parties will share the costs of presuit mediation equally, including the fee charged by the mediator.
By agreeing to participate in presuit mediation, you are not bound in any way to change your position, and the mediator has no authority to make any decisions or to determine who is right or wrong. Their role is to act as a facilitator so that each party understands the position of the other party and that all options for reasonable settlement are fully explored. If an agreement is reached at mediation, then an agreement will be executed and become a binding and enforceable commitment of the parties. The failure to reach an agreement, or the failure of a party to participate in the process, will result in the mediator declaring an impasse in the mediation, after which the aggrieved party may proceed to file a lawsuit.
In the event that the Board fails to respond within 20 days from the date of your letter, or if the Board fails to agree to at least one of the mediators that you suggest in your letter, or the Board fails to pay or prepay to the mediator one-half of the costs involved, the you will be authorized to proceed with the filing of a lawsuit against the Board without further notice and may seek an award of attorneys’ fees or costs incurred in attempting to obtain mediation.
That being said, prior to sending the formal demand letter to the Board, we recommend that you seek counsel from a qualified Florida Bar licensed attorney so that they can review your association’s governing documents and assist in the drafting of the letter.
Avi S. Tryson, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. 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, 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.