Many documents for community associations contain provisions authorizing the association to take measures the board considers necessary to resolve a covenant violation and to charge the owner for the work that is done. This is referred to as a “self-help” remedy. Examples of typical provisions include, but are not limited to, situations when the owner is not properly maintaining the property or has undertaken an unapproved alteration. Depending on the nature of the issue, it is often advisable for the association to pursue the violation in court (or arbitration) rather than take on the added risk associated with the self-help approach. One such example might be when an owner has failed to paint the exterior of the property as required by the declaration of covenants. However, a recent ruling by the Florida 2nd District Court of Appeal raises the issue of whether the board may make the choice to pursue its remedy in court rather than with self-help.
In Alorda v. Sutton Place Homeowners Association, Inc., Case No. 2D10-3966, decided on January 6, 2012, the Appellate Court ruled that in this particular case, the Association was unable to pursue a remedy in court for an injunction because the self help provisions of its governing documents provided a “remedy at law”. (One of the required elements necessary to be met in order to obtain injunctive relief from the court is that there is an “inadequate remedy at law.”) In this case, the Declaration of Covenants required every homeowner to purchase insurance coverage and to provide proof of such coverage to the Association, including renewals. If the homeowner failed to obtain or provide proof of insurance coverage, the Association was authorized to obtain such insurance and assess the owner the cost. The Appellate Court ruled that notwithstanding that this authorization was optional under the Declaration, it provided a sufficient remedy to the Association “at law”, and, as a result, the Association could not sustain a cause of action for injunction, which they had attempted to do in this case.
(Factually, it appears that the Complaint filed by the Association in Alorda was the problem here, as it sued for an injunction to compel the homeowner to purchase insurance, rather than to compel the owner to prove that he or she had obtained the necessary coverage. The homeowner had provided proof of obtaining coverage after the law suit was filed and the case progressed on the issue of prevailing party for attorney’s fee recovery.)
In this ruling, the 2nd District Court of Appeal is creating the inference that if a self-help remedy is available in the governing documents, the association must pursue that remedy rather than filing a law suit for an injunction. At the present time, it remains to be seen as to how far-reaching the Florida Courts will be inclined to apply this principle, particularly when the governing documents are “permissive” in the choice of remedy (using the word “may” rather than “shall”) and whether the power to assess the violating homeowner for the costs incurred by the Association are included as well. Many governing documents contain the authorization for self-help, but fail to make the costs an assessment against the violating owner and/or the property. When there is no ability to assess for the costs incurred, the ability of the association to recover such costs becomes significantly more difficult.
In light of the Alorda decision, it is generally recommended that association boards review their governing documents relative to the existence of self-help remedies, and in particular whether there is the ability to assess the costs incurred. If there is the self-help remedy without the ability to assess, an amendment to the declaration should be considered to provide for this additional authority, if possible.