Common Questions About Homeowners' Associations
It is natural to have many questions and worries when faced with a legal issue or litigation. The experienced lawyers at DeLoach, Hofstra & Cavonis, P.A., ask many common legal questions and provide useful answers to help get you in making the best decisions for you and your family.
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Can a tenant be evicted by a Florida HOA?
When new owners purchase condominiums and other residences governed by homeowners’ associations (HOAs), they agree to the terms of your HOA’s bylaws. However, a tenant who rents a home in these communities—with the owner acting as landlord—may not be subject to HOA rules. So what happens when a tenant breaks the code of conduct established by the community and its members?
In many states, HOAs are limited to taking action against a member in a homeowners’ association whose tenants are causing trouble, and have no oversight of the tenants themselves. Fortunately, Florida does allow HOAs to take action against tenants, up to and including eviction, but only in specific circumstances. There are procedures that must be followed in order for the process to be legal.
Florida HOAs Can Deal With Tenants for Non-Payment Only
In the past, Florida parcel owners could leave the community, rent out their homes, and keep all of the rent money—and HOA couldn’t take any action other than to foreclose.
In 2010, the Florida Legislature amended HOA laws concerning the right to collect payment for past-due association fees and assessments, giving tenants some accountability for a homeowner-landlord’s unpaid fees.
Today, Florida HOAs have the legal right to do the following:
- Collect past due assessments from tenants. If a homeowner-landlord falls behind in his assessments, the HOA may serve a notice to a tenant demanding that rent be paid directly to the association. If the tenant complies, the amount paid to the association is credited against the landlord’s debt, and the tenant cannot be evicted from the residence by the landlord as long as rent payments continue. The tenant is released from his obligation to the HOA if he leaves the unit or once the debt owed by the tenant’s landlord is paid in full.
- Prevent a tenant from exercising member rights. Florida law states that a tenant who is paying a homeowner’s debt doesn't have any of the rights of an owner within the community, including the right to vote in elections or to examine the association’s records.
- Evict a tenant. If the tenant receives a written demand for payment from the HOA but continues to pay rent to the homeowner-landlord, the HOA can evict the tenant on the grounds of failing to meet a monetary obligation.
We Can Help You Navigate and Avoid Tenant Disputes
Once again, Florida HOAs only have the right to remove tenants for non-payment. A tenant is obligated to follow the terms of a lease issued by the parcel owner, and may not have ever seen (or agreed to) the HOAs community guidelines and bylaws.
However, the HOA can strengthen its position by including lease and rental terms in its governing documents, with particular attention to the enforceability and legality of landlord-tenant agreements.
If you're having trouble with an owner or tenant on your property, our attorneys can:
- Serve and enforce collections. HOAs are required to serve notice to tenants before assigning them the responsibility of paying a landlord’s assessments. The notice must be made by United States mail or hand delivery; cite the Florida Statute giving the HOA authority in the matter; and contain clear language outlining how to remand rent payments to the homeowners’ association. If payment still isn't made, we can intercede on your behalf to collect payment in full.
- Represent your interests. If your governing documents contain enforceable policies regarding delinquent tenants, we can begin taking eviction actions. If the matter still isn't resolved, we can move forward with the filing of liens or foreclosure action, representing the association all the way to litigation.
- Strengthen your governing documents. We would be happy to review the language and stipulations regarding rental in your governing documents, ensuring that all future tenants will be bound by the terms and principles agreed upon by members.
Whether you need help creating your homeowners’ association or are in the middle of a dispute with a member, we can help. Our real estate attorney has years of experience representing homeowners and their associations through all aspects of their business operations. Simply fill out the quick contact form on this page to set up a consultation.
What are the legal remedies if a resident doesn't pay housing association fees?
All members of a community association are responsible for paying dues and assessments in a timely manner. While Florida law allows a homeowners’ association to take action against a resident who falls behind on payments, there are specific procedures that must be followed—and failure to follow the law can place the association at risk of a lawsuit.
Florida Regulations Allowing HOAs to Collect Fees from Homeowners
Homeowners’ associations (HOAs) often outline the procedures that can be taken against a homeowner in its governing documents, such as suspension of rights or the filing of a lien. However, the governing documents are only enforceable if they're in compliance with state HOA statutes.
Under Florida law, the HOA must:
- Give notice to a delinquent owner. The HOA board must issue a demand letter stating the amount of the outstanding debt and the steps taken if the debt isn't paid. Potential penalties include late fees; suspension of voting rights in HOA meetings; and suspension of use of common areas, such as tennis courts or pools.
- Notify the homeowner before filing a lien. If the homeowner fails to resolve the debt after a demand letter is issued, the HOA may consider filing a lien against the home. Before a lien can be filed, Florida law requires the HOA to provide a homeowner with a written demand for the outstanding amount and permit him or her 45 days to pay the amount in full. Florida law also dictates the charges allowed in an assessments lien, including past due assessments, administrative late fees (up to $25 or five percent of the amount of each installment that is past due), interest on unpaid assessments, and attorney’s fees.
- Notify the homeowner of intent to foreclose. If the matter isn't resolved, the HOA may file a lawsuit to foreclose on the home to collect the assessments. The HOA cannot initiate a foreclosure unless it notified the homeowner with intent to foreclose and allowed 45 days after the notice to settle the debt.
How an Attorney Can Help You Navigate an HOA Dispute
An attorney can be extremely useful when an HOA is having trouble collecting past due assessments. Our community association lawyers ensure the HOA is following Florida legal requirements. We can also:
- Inform owner of violations. Our firm assists with corrective action for homeowners in arrears, ensuring that notifications were issued in compliance with state laws and governing documents. We can also perform collection services for our association clients regarding past-due accounts.
- Tenant collections. If a homeowner rented out the property to a tenant, we enforce delinquent tenant procedures outlined in the governing documents.
- Negotiate between the parties. A homeowner may refuse to pay assessments for a number of reasons, from insufficient funds to the unfair levying of fines. Our attorneys perform mediation and arbitration services, including negotiating an amount for a qualifying offer to satisfy the debt.
- Represent the HOA. If the homeowner doesn't comply with the terms of the qualifying offer or an agreement cannot be reached, the HOA’s foreclosure action may proceed to court. We represent the association in foreclosure litigation and work to remove the owner’s right of possession to the property.
- Prevent future disputes. In many cases, an HOA can avoid costly collection and litigation costs by strengthening its governing documents. Our attorneys examine existing governing documents and bylaws; rewrite vague language or outdated information; ensure that declarations and collection procedures are compliant with Florida law; and advise association directors on available enforcement options.
Our attorneys have over 30 years of experience representing homeowners and their associations through all aspects of their business operations. Whether you need help creating the governing documents of your HOA, or the association is in the middle of a dispute with a member, our experienced real estate attorneys can answer your questions and advise you of your legal options. Simply fill out the quick contact form on this page to set up a consultation.
When are housing associations allowed to take action against a resident?
A homeowners' community association (HOA) has the right to levy fines against a member who commits a violation of the governing agreement. Examples might be failure to comply with aesthetic regulations, or failure to pay for agreed-upon services.
However, Florida homeowners’ association laws set statues about the type of action and amount of fines that can be levied against a community member.
Adverse Actions That May Be Taken Against Florida HOA Members
A refusal to comply with governing documents of the community or the rules of the association is grounds for action by the association, or a member against another member. The other member must own a parcel within the community, or be a member’s tenants or guests who use the common areas.
Under state law, an HOA can take the following actions against members:
- Fines. An association is allowed to charge reasonable fines of up to $100 per violation against a member—or any member’s tenant, guest, or invitee—for the violation of provisions in the association bylaws or regulations in the governing documents. Fines may continue to be levied by the board for each day that the violation continues, as long as the total assessed for the violation doesn't exceed $1,000.
- Use of common areas. If a member hasn't paid a fee, fine, or other monetary obligation to the association within 90 days of assessment, the association may suspend the member or guest’s right to visit common areas or use facilities until the fee is paid in full.
- Voting rights. The HOA may suspend the voting rights of a member who hasn't paid fees or fines that are over 90 days delinquent. A suspended member won't have the right to participate in voting during an election to the board, approve an action, or form a quorum until he or she has remitted full payment of all financial obligations due to the association.
- Liens. A housing association typically has a right of lien on each parcel within the property to secure the payment of fines and assessments. Associations cannot file a claim of lien for fines or outstanding debts of less than $1,000. Once the claim is filed, the lien may be used to secure any unpaid assessments as well as interest, late charges, and reasonable costs incurred in the collection process.
Before an HOA can file a record of lien, it must provide the parcel owner with a written demand that totals the amount of past due assessments; the reason for the assessments; and notify the owner of intent to assert a claim of lien. The notice must be mailed or handed to the owner at least 45 days before the lien may be foreclosed to allow the owner an opportunity to make payment for all amounts due.
Options for Members in Financial Disputes With an HOA
While the HOA has a right to collect unpaid assessments from members, members also have rights in disputes with the association. For instance, a member can take action against an association—even if he or she hasn't paid an assessment—for:
- Failing to provide notice. In most cases, a member cannot be assessed a fine or denied rights unless he or she was given at least 14 days’ notice to address and correct the problem.
- Failing to convene a hearing. Florida law requires members to have an opportunity for a hearing before a committee of at least three impartial members of the HOA board. If the majority of the committee doesn't approve a proposed fine or suspension, it may not be imposed on the member.
- Imposing or enforcing the fine. If a member takes the HOA to court over a fine or lien and prevails, the member is entitled to recover court costs, reasonable attorney fees, and other litigation expenses from the association.
Our Expertise Can Help You
If you're involved in a dispute between a homeowners' association and a member, please give us a call today. Our attorneys have over 30 years of experience representing homeowners and their associations through all aspect of their business operations. Simply fill out the quick contact form on this page to set up a consultation.
Why would a community association need a lawyer?
A community association does much more for homeowners than perform lawn maintenance and collect rent checks. Members of associations governing condominiums, neighborhoods, cooperatives, or other communities have a number of fiduciary duties and responsibilities set forth by the law.
No matter what kind of community association you belong to, you should have qualified legal counsel to represent your interests.
How Attorneys Protect Homeowners’ and Community Associations
A homeowners’ association allows members to take an active role in maintaining a high standard for the community.
Associations are required to comply with construction standards and laws governing the soundness of the buildings and structures in the community, thus ensuring the safety of owners and children who live on the property. In addition to taking part in the community development process, associations must set forth the governing principles of the community and clearly outline the duties of both the association and the homeowner.
The contract between homeowners and associations can provide protection to each party, but it can also give rise to disagreements. An experienced homeowners’ association attorney can perform a number of services that both solve and prevent problems in the community, including:
- Document drafting. Your association is built on the enforceability of its contracts, and we ensure that all documentation is legally sound and drafted in a language that leaves little room for interpretation to minimize potential problems. Our attorneys take a personal approach to the creation of association rules and bylaws, allowing clients to implement regulations and restrictions that establish the character of the community without encroaching on the legal rights of the owners.
- Assessment collection. If an owner fails to make payment, an association has to enforce its rights to impose fines carefully in order to avoid liability for legal action. Under Florida law, there are specific procedures that must be followed before an association can take action against a homeowner. An attorney can guide the association through this process without exposing the association to litigation.
- Statutory interpretation. Association statutes and bylaws that were created decades ago may contain vague or ambiguous language, making it difficult to know when and how they can be enforced. Our attorneys can help interpret the language in governing documents to help each party understand its rights, as well as prepare amendments to governing documents to avoid future confusion.
- Protection and enforcement. Some associations may require occasional legal advice for disputes, while others rely regularly on counsel for day-to-day operations. Our law firm provides as much assistance as each client requires, advising association members on the use of their enforcement options—including fines, evictions, and suspension of voting rights; reviewing governing documents and articles of incorporation for potential errors or liability; or preparing to resolve a matter in court. We also take over the responsibility of informing owners of alleged violations, requesting payment or response from an owner who has committed a violation, and assume the duty of securing the owner’s corrective action.
- Dispute resolution. As the trusted legal representation for nearly 100 different homeowners' associations, we know that it's not always possible to avoid disputes among association members. Our attorneys work to resolve these conflicts with a minimum of interruption in the community while ensuring that the association’s guiding principles are respected.
- Litigation and mediation. If a conflict arises and an owner is threatening legal action, our attorneys can step in to provide mediation and arbitration services to avoid the necessity of going to court. If an owner has already filed a lawsuit against the association, our law firm can aggressively represent the association during settlement negotiations and in the courtroom.
If you belong to a homeowner's association or a condominium association and have questions about contracts, association by-laws, or compliance issues, please give us a call today. Our attorneys have over 30 years of experience representing homeowners and their associations through all aspects of their business operations. Simply fill out the quick contact form on this page to set up a consultation.