A homeowners association (“HOA”) or condo association, is a private association and governing body of a common interest community, such as a condominium complex or gated community. The HOA is responsible for the marketing, managing, and selling of homes and lots in a subdivision or community.
HOAs or condo associations are often formed by real estate developers, and they collect monthly or annual fees from the residents of the community. These collected fees are to be used for the upkeep of common areas of the community, as well as shared structures and exteriors.
Homeowners associations also have the power to enforce covenants, conditions, and restrictions of the common interest community. For example, requiring all lawns to be maintained to the HOA’s standards is a common covenant. If a member of the association is noncompliant with a covenant or condition, the HOA is legally allowed to take that noncompliant resident to court. Additionally, in some situations, an owner in the association may be able to sue their HOA.
What Are Homeowners Associations Allowed and Not Allowed to Do?
As previously mentioned, HOAs are legally allowed to establish and enforce covenants, conditions, and restrictions. Typically, the ability of HOAs to establish and enforce covenants is based in contract law, as the residents agree to the HOA prior to entering the community. HOA rules stipulate several things, including:
- What colors members are allowed to paint their home, front door, etc.;
- How tall a community member’s grass can grow, or other landscaping conditions;
- Which types of vehicles members are allowed to park in their driveway, in the street, or in a community lot;
- What type of home additions are allowed; or
- What types of coverings are allowed in a members street facing windows, such as curtains or blinds.
In some cases, homeowners associations will have the power to fine, levy liens against mortgages, or even foreclose upon a property that falls under their jurisdiction. For example, if a member of the association does not pay their annual dues, or refuses to contribute to an assessment, the HOA may be able to initiate fines or a foreclosure action.
Although it seems like HOAs have an unreasonable amount of power over property that the member of the community lawfully owns, HOAs still have to adhere to state and federal laws. These laws that govern HOAs are meant to restrict HOAs in exactly how much they can restrict the homeowners that they preside over.
For example, homeowner associations are not allowed to:
- Discriminate: HOAs must abide by the federal Fair Housing Act. Under the Fair Housing Act, an individual cannot be denied housing based on their race, sex, disability, religion, familial status, or national origin;
- Refuse Your Right to Solar Drying: HOAs are not allowed to restrict an individual from drying their laundry on a clothesline. However, many states have laws that overrule this restriction, so it is important to understand what your specific state allows;
- Levy Excessive or Unexplained Fines: HOAs are allowed to fine members for any infractions against the rules stated in the HOA agreement. However, HOAs are not allowed to fine members for things they never detailed in the rules that were agreed to. For example, if the rules set forth do not dictate keeping trees trimmed, but the member receives a fine for unkempt trees, that member is legally allowed to appeal the fine and refuse to pay; or
- Change Rules Without Due Process: Associations are not allowed to change the rules that were agreed to by its members suddenly and without notifying the members for which the new rules apply to. Once again, all rules must be outlined in the covenants, conditions, and restrictions of the HOA agreement in order for them to be enforceable.
Can I Sue My Homeowners Association?
In short, yes. As mentioned above, it is possible for a member of an association to sue their homeowners association. It is imperative that members of an association understand what they’re agreeing to before agreeing to the covenants, conditions, and restrictions. This is important because a member cannot sue their HOA for something that they agreed to abide by.
Common reasons in which a member of an association may sue the association include:
- Violation of Covenants, Conditions, and Restrictions (“CC&Rs”): If the association violates their own rules, an individual member could sue them to force them to comply with their own rules. CC&R violations are considered to be contract violations;
- Breach of Fiduciary Duty: The association has a responsibility to use the dues and fines that they collect to maintain and improve common areas in the association. If they misuse these fines, such as taking money for themselves from the community funds, any member of the association could file a suit against them; and/or
- Neglecting Their Care and Maintenance of Common Area Duties: These violations will be considered similar to a breach of fiduciary duty in that the association is required to hold up their end of the contract. If an association is failing in their duties to care for and maintain common areas, such as making necessary repairs to shared spaces, members of the association can sue them. Additionally, if any damage is done to a member or property as a result of the HOA failing to make repairs, a civil lawsuit is possible.
Who Is Responsible for Repairs of Condos in Ft. Lauderdale?
The responsibility for making repairs in a Ft. Lauderdale condo building may be divided between the unit owners and the association dependent on several factors. One of the main factors in determining who is responsible for the repair is whether the repair that is needed is for a common area or an individual unit. Once again, association fees collected from the members are to be used to make repairs in common areas.
Another factor in determining the responsibility for repair is what actually caused the damage that necessitated the repairs. If there was a faulty water pipe that ran throughout the condo unit, the association may be liable for the repair. However, if the member themselves caused the damages, then they will likely be liable for the repairs.
Generally speaking, condo associations in Ft. Lauderdale will be responsible for repairs of common elements such as lobbies, parking lots, elevators, and recreational facilities. Whereas unit owners will be responsible for the maintenance of their own units, as well as repairs for any improvements or upgrades that they made to their unit. It is important to note that the association will sometimes be responsible for repairing areas of the individual units that were part of the original construction, such as their floors and walls.
Can an Insurance Company Help Cover Repair Costs?
In short, yes. Ft. Lauderdale condo associations are required by Florida law to provide a master insurance policy to cover the common elements of the building. Unit owners are also required by the law to have homeowner’s insurance to cover their own units. If the costs for any repairs of common elements exceed the amounts covered by the master insurance plan, then the extra costs will be paid for by the dues collected from the associations members.
In addition to insurance policies, Florida casualty repair laws cover damages done by emergencies such as a hurricane, tornado, or unforeseeable circumstances like a city wide power surge. HOA agreements will often include details regarding how casualty repairs are to be made.
How Are Incidental Damages Determined?
If a member’s condo unit was damaged by the association while they were repairing a common area, the association will likely be liable for such damages. Many Ft. Lauderdale condo associations include an incidental damages clause in their rules and regulations. Incidental damages clauses often state that the association will be responsible for repairing any damages to a unit that were caused by association repairs of common areas. For example, if an association has to cut into the wall of a member’s unit to repair a pipe that flows to a common area, they will be liable to then repair that cut.
In the event that an association does not have an incidental damages clause, then an association member may have to bear the burden of repairing their unit. Thus, it is important to confirm if your association has an applicable incidental damages clause, prior to agreeing to the rules and regulations. If the association doesn’t have an incidental damages clause, the member may wish to request that they amend their rules to include such a clause, or find a different place to live.
What Happens if a Member Causes Damages to a Common Area or Other Member’s Unit?
Ft. Lauderdale condominium unit owners are legally obligated to behave in a way that will not damage common areas or other members’ units. If a member’s own negligence has caused damage to a common area, then they will have to bear the burden of repairs. In some cases a legal defense may be available, such as if the damage was caused in order to remedy an emergency situation.
For example, if there was a fire and the association member hosed the area to put out the fire or utilized a fire extinguisher that caused damage to a carpeted common area, they will likely not be liable for such damages.
Do I need an Attorney for Help With Condo Repairs and Incidental Damages?
As can be seen, consulting with an experienced real estate attorney in Fort Lauderdale, FL is often necessary when dealing with disputes over who is responsible for repairs. Additionally, insurance policies are often involved in such disputes, which can add an additional complexity to repair disputes.
An experienced attorney can advise you as to your best course of legal action, and assist you in filing a civil lawsuit against your association for repairs, if necessary. Finally, an attorney can also represent you in a court of law.
