OF COVENANTS PART II
This edition of The Association
e-Lawyer is the second in a multi-part series which will address enforcement
of the covenants that regulate deed restricted communities (e.g. HOAs and
Condominiums). For purposes of these articles, the term "covenants" will
include the restrictions found in Declarations, Articles of Incorporations,
By-Laws, Rules & Regulations and Architectural Guidelines. These e-Lawyer
articles, will not, however, address issues relating to the non-payment
In Part I we addressed the
various options that may be available to community associations to In this
Part II, we will address the mediation/litigation process that is now required
for the enforcement of HOA covenants using the injunctive relief method.
THE INJUNCTIVE RELIEF PROCESS
FOR HOMEOWNER ASSOCIATIONS Section 720.305(1), Florida Statutes, permits
Homeowners Associations to sue members, tenants, guests, and invitees for
injunctive relief when a violation occurs. Such lawsuits are referred to
as "actions in equity".
In a nutshell, an injunction
is an order from a court that forbids someone from doing something that
they should not be doing (e.g. constructing an improvement without architectural
review and approval) or requiring them to do something that they should
be doing (e.g. mowing the yard).
Until 2004, this enforcement
process for HOAs was the same as the enforcement of many other agreements.
When the Association's attempts failed, we wrote to the owner and demanded
that they comply with the covenants. If they refused, we would file a lawsuit
in the appropriate state court and ask a Judge to issue an injunction against
In 2004, the Florida Legislature
decided that most of such lawsuits would not be permitted until the Associations
and the alleged violators first attempted to resolve the issues through
mediation. Accordingly, Section 720.311, Florida Statutes was adopted to
provide for this pre-litigation process. The following is a step by step
outline of the process as it now exists.
SUMMARY OF PRE-LITIGATION
Section 720.311, along with
the administrative rules that were also adopted, generally requires the
following pre-litigation steps:
1. At least one letter must
be mailed to the alleged violator, which letter must, at a minimum:
a. Be properly addressed;
b. Identify the alleged
c. Describe the required
d. Provide the time period
for the completion of the cure; and
e. Warn of the consequence
of the failure to comply.
This step has always been
required by Florida case law, so no additional burden was imposed on the
Association. While only one letter is legally required, prudence dictates
that at least two such letters be mailed and that at least one of those
letters be sent by certified mail.
2. If the violation is not
cured, the Association is required to prepare a Petition for Mediation
and file it with the Department of Business and Professional Regulation
("Department") along with a filing fee in the amount of $200.00.
3. The Department reviews
the Petition and determines if it qualifies for the mediation process.
If it does not qualify, the Department closes the matter and advises the
Association of such action. If it does qualify the Department sends a copy
of the Petition to the alleged violator along with a form to be completed
and returned. That form advises the alleged violator that the failure to
return the completed form by a designated date will result in the mediation
process being closed so that the Association can commence with the appropriate
state court litigation, if it so chooses.
4. If the Petition qualifies
and the alleged violator returns the completed form, the matter is then
sent to a state approved mediator who contacts the parties to schedule
the mediation session.
5. The alleged violators
and a person or persons who have complete authority to settle the matter
on behalf of the Association must appear and be prepared to attempt, in
good faith, to resolve the issue.
NOTE 1: It is critical to
understand that "complete authority to settle" means what it says and does
not permit persons to appear with pre-mandated settlement terms.
NOTE 2: A mediator is an
independent, unbiased third party who has been trained to work with both
parties in an attempt to find some way to resolve the dispute during the
mediation session. A mediator may or may not be a lawyer, but they are
not permitted to give legal advice nor are they permitted to make decisions.
They are merely facilitators who assist the parties in making their own
6. If the matter is voluntarily
settled during the mediation session, the settlement terms will be reduced
to writing and that agreement becomes the document that the parties will
look to for the resolution of the issue.
7. If the matter cannot be
settled, the mediator will declare an "impasse" and report that to the
Department. At that time, the Association is free to file a lawsuit against
the violator in the appropriate state court.
While we were first very
skeptical as to the effectiveness of the pre-litigation process, we have
found that a large number of cases are settled at this level, thereby eliminating
the need to file the lawsuits that are addressed below.
NOTE 3: The question of attorney's
fees with respect to the mediation process will be addressed in a later
part of this series.
As addressed above, the mediation
process may fail for two reasons. The violator may refuse to participate
in the process or the parties simply may not be able to settle their differences
at the mediation session. In either event, if the mediation fails, the
Association must then decide if it wishes to simply close the matter or
take the matter to the next level by filing a lawsuit in the appropriate
State court. This section will address the litigation process, which is
summarized as follows:
1. A "Complaint" (vs. Petition)
is prepared in which all of the relevant facts are outlined. Generally
these facts are as follows:
a. The identification of
b. A description of the
c. The identification of
the owner and the lot they own;
d. A statement that the
owner and lot are subject to the Association and the Declaration;
e. A description of the
f. A summary of the attempts
that have been made to resolve the matter;
g. A request for the reimbursement
of attorney's fees and costs if the Association wins the case; and
h. A request to the Court
for the appropriate relief (e.g. a Judgment requiring the owner to comply).
NOTE 4: Because these actions
are defined as "actions in equity", no jury trial is permitted. Instead,
the Judge decides all matters.
2. The Complaint is then
filed with the Clerk of the Courts with the appropriate filing fee and
a Summons is issued which is served on the Owner along with a copy of the
3. Once the owner is served
with the Complaint, they are allowed twenty (20) days to file a response
with the Court. That response can be in the form of an "Answer" or it can
be in the form of a "Motion to Dismiss" which can only raise technical
issues (e.g. failed to name all of the owners).
a. If an Answer is filed,
the owner must also do the following at the same time:
i. They must raise whatever
affirmative defenses that they may have relating to the case (e.g. selective
enforcement, waiver, etc.); and
ii. They must file any Counterclaims
that they have against the Association (e.g. they lost rentals as a result
of the failure to maintain the pool). If such claims are filed, the Association
must then respond in the same fashion as is required for the violator.
b. If a Motion to Dismiss
is filed, a hearing must be held to determine if the Complaint must be
amended to rectify technical issues. When the Complaint is determined to
be sufficient, an Answer must be filed in the fashion addressed above.
4. After the Answer is filed,
the "discovery" stage begins. During this period, each party has the privilege
of taking depositions, requesting documents and asking written questions
5. Typically, the next step
is for the Association to file a "Motion for Summary Judgment". Because
no jury will be involved in these cases, the Judge will decide all issues.
Accordingly, if there are no factual disputes (e.g. every one agrees that
the owners built an eight (8) foot high fence), then the Judge can apply
the documents and the law to the agreed upon facts and make a decision
without a trial.
6. If, however, there are
disputed facts (which in many cases there are), a trial must be held. Typically
before a trial will be set, Judges will require the parties to attempt
to mediate the matter. Because it is up to each judge's discretion, this
mediation may be required even though the Section 720.311 mediation failed.
7. At the trial, the Judge
will hear all of the evidence and review all of the applicable documents
and laws and then render a Final Judgment for either the Association or
8. Finally, the Judge will
make a determination as to who prevailed in the lawsuit and will then award
attorneys fees and costs to that prevailing party.
NOTE 5: The question of attorney's
fees with respect to the litigation process will be addressed in a later
part of this series.
In Part III of this series
we will discuss the arbitration/litigation process for the enforcement
of condominium covenants.
The firm of Taylor &
Carls, P.A., with offices located in Maitland, Melbourne, Tampa and Palm
Coast, Florida, was founded in 1981 and has practiced in the area of community
association law since that date. This edition was prepared by Robert L.
Taylor, Esq. of Taylor & Carls, P.A. The information contained in The
Association e-Lawyer should not be acted upon without professional legal
(c)2006 Taylor & Carls,
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