In a recent decision, the Fourth District Court of Appeal was asked to determine whether a homeowner association had an obligation to enforce a covenant violation, when requested to do so by a homeowner, against others in the community. In Heath v. Bear Island Homeowners Association, Inc., and Moscato, Case No. 4D10-3779, December 7, 2011, the Appellate Court ruled that the governing documents for the Association in this case did not contain mandatory language relative to the enforcement requirements and, therefore, the Association had no obligation to take legal action to enforce the Declaration.
The Court noted that the enforcement provision of the Declaration indicated that the Declaration may be enforced through legal proceedings, and that the Association may, but shall not be required to, seek enforcement. By virtue of the permissive nature of the language of this particular Declaration, the Court found no duty for the Association to enforce and upheld the finding of the trial court in favor of the Association.
Quite frequently, associations are contacted by individual owners within the community, requesting the association to commence legal action against another owner or owners for what the complaining owners perceive to be violations, typically of a nuisance-type issue. In many such instances, the complaining homeowner also hires an attorney, who threatens to (and often does) bring legal action against the association to either compel the association to enforce on the violation, or for damages due to that failure. In a large percentage of such disputes, the issues being complained of involve a dispute or disputes between just the two owners. Unless there is a mandatory provision in the governing documents that compels the association to enforce the claimed violation, the appropriate response to the requesting (or demanding) owner is for that owner to use the authority of the Statute to bring legal action in his or her own name against the offending party. Generally, this is the best use of the complaining owner’s resources.
Chapters 718, 719 and 720 of Florida Statutes, governing community associations, all contain enforcement language empowering associations to take enforcement action. The way the Statutes are worded are in such a manner to be permissive in nature relative to the obligation of an association to enforce a perceived violation rather than mandatory. Consequently, a review of the governing documents for the community will be necessary to determine if the association has the option to enforce or not. Although many governing documents contain permissive rather than mandatory language, such as in the Bear Islandcase, it is suggested that this be confirmed in the governing documents.
Additionally, it is important to be aware of certain types of violations that may be of a nature that an equitable fiduciary duty to enforce exists, such as if the exterior of a property in a homeowner’s association has fallen into obvious disrepair, or a restricted vehicle is being kept in a community with vehicle restrictions in the governing documents. Any question regarding a particular issue should be reviewed with counsel before a decision is made to not take legal action to enforce it.