Saturday, January 19, 2019

Condominiums Have Options For Bad Behavior

LAW MATTERS

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Condominium living can provide the best of all worlds. Condominium owners have a home, amenities and the association takes care of the maintenance. It is a particularly attractive option for part-time residents. Living together even affords an element of security, as most condominiums try to monitor occupancy and exercise approval of both new owners and tenants.

The security afforded by close proximity of neighbors in a condominium can also be a curse. The noisy or problematic neighbor can be separated by little more than a wall, use the same pool and ride the same elevator. Most owners do not want to start a fight with a problem owner and look to their association leaders to carry the day. As long as the association leaders are willing to take action, the association has a variety of options to pursue.

The association’s board of directors must first determine if the “problem” is significant enough to warrant action by the association. Most associations want to stay out of squabbles between unit owners and will often recommend disputing unit owners settle or litigate between themselves. When a problem owner (or tenant) affects other owners generally, the association is more likely to take action.

The first place the association looks is its governing documents. Does the problem violate the association’s Declaration of Condominium or rules? Almost all Declarations include a catch all protection in their Declaration that prohibits owners or occupants from being a nuisance to others. That can include everything from noise to parking in the wrong spot.

The association could start action by proposing a fine for the offending owner or occupant. Section 718.303 Fla. Stat. gives all condominium associations the right to levy reasonable fines. Association authority to fine is no longer required to be in the association’s Declaration. A fine may be levied by the board on the basis of each day of a continuing violation. A fine may not exceed $100 per violation, or $1,000 in the aggregate for a continuing violation.

Florida statutes also authorize the association to suspend, “for a reasonable period of time,” the right of a unit owner or unit owner’s tenant, guest, or invitee to use the common elements, common facilities or any other association property for failure to comply with a provision of the Declaration, bylaws or rules of the association. The suspension does not apply to limited common elements intended to be used only by that unit, common elements needed to access the unit, utility services provided to the unit, parking spaces, or elevators.

Although a fine or suspension is adopted by the board of directors, it may not be imposed unless the board first provides at least 14 days written notice to the unit owner and, if applicable, any occupant, of the proposed fine or suspension and opportunity for hearing before a committee of at least three members appointed by the board. Committee members may not be officers, directors or employees of the association or the spouse, child, parent, brother or sister of an officer, director or employee. The committee is limited to determining whether to confirm or reject the fine or suspension.

If a unit owner fails to pay a fine for more than 90 days, the association can suspend the right of the unit owner or unit’s occupant to use common elements, common facilities or association property until the fine is paid. The committee hearing requirement does not apply to suspensions imposed for failure to pay a fine.

When the owner piles up fines of more than $1,000 and is more than 90 days delinquent in payment, the association may suspend the voting rights of the unit owner. If voting rights are suspended, the unit is disregarded for determining total number of voting interests and the suspended voting interest is not considered for any purpose.

A fine is not a lien against a unit. For that reason, many owners disregard an association’s fines. But, a fine can be collected by suit just as any other debt and judgment in a suit can be a lien against the unit. The association can also refuse to approve a tenant or sale until the fine is paid. A unit owner scoffing at the association’s fines often regrets failure to pay when the association takes further action to collect.

An association can also pursue court action to enforce its Declaration, other governing documents and the Condominium Act. Legal action can include a claim for damages, injunctive relief or both. The prevailing party in any such action is entitled to recover reasonable attorney fees, which places an association in a strong position if it has a good case. If it does not have a good case, the Condominium Act provides that a prevailing unit owner is not only entitled to attorney fees, but is also able to recover additional amounts as determined by the court to be necessary to reimburse the unit owner for his or her share of assessments levied by the association to fund its expenses of litigation.

An association cannot go directly to court in many cases. If the lawsuit would require an owner to take action or to refrain from action involving the owner’s unit or the appurtenances thereto, the association must first proceed to non-binding arbitration under Section 718.1255 Fla. Stat. The legislature’s mandate to non-binding arbitration is an effort to reduce the number of condominium cases going to court and provide a less expensive and efficient process to settle certain condominium disputes.

Arbitration cases are started by filing a petition for arbitration. The petition is reviewed by the Division of Florida Condominiums, Timeshares and Mobile Homes to confirm the dispute qualifies for arbitration under the statute and that the petition is in order. If the petition meets the statutory requirements, the owner is provided a copy of the petition and an opportunity to respond.

An arbitration case is ultimately heard by an arbitrator, and many arbitration cases are conducted by telephone conference call. The procedure is relatively fast and much cheaper than a full blown lawsuit. Ultimate decision is usually reached in a period of months rather than years. The arbitration mandate includes award of cost and attorney fees to the prevailing party.

An arbitration decision may not be the end of the dispute. If a party is unhappy, that party may proceed to court for a trial de novo. Trial de novo is not an appeal, but a case that starts all over again. The judge is aware of which party was unhappy with the arbitration decision, as that party is plaintiff in the case. The judge is not aware of the particulars of the arbitration case or even the actual decision. If the judgment after trial de novo is not more favorable than the arbitration decision, the party who filed the complaint for a trial de novo is assessed the other party’s arbitration cost, court costs, other reasonable costs, attorney fees, investigation expenses, and expenses for expert or other testimonial expert expenses. If the judgment is more favorable, the party who filed the complaint for trial de novo is awarded reasonable court costs and attorney fees.

Associations should try to resolve problems informally and without resort to lawyers and adversarial proceedings. Close proximity of living in a condominium cries out for effort to “get along.” But, when discussion fails, associations have more than one option to solve a problem owner or occupant.

William G. Morris is the principal of William G. Morris, P.A. William G. Morris and his firm have represented clients in Collier County for over 30 years. His practice includes litigation and divorce, business law, estate planning, associations and real estate. The information in this column is general in nature and not intended as legal advice.

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