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 of assessments. 

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 the violator. 

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 PROCESS: 

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 violation;
c. Describe the required cure;
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 voluntary decisions. 

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. 

LITIGATION PROCESS: 

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 the Association;
b. A description of the Declaration;
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 alleged violation;
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 Complaint. 

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 (interrogatories). 

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 the homeowner. 

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. 

NEXT EDITION: 

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 advice. 

(c)2006 Taylor & Carls, P.A. All Rights Reserved. The firm can be reached at 407-660-1040. To unsubscribe to this service, please reply to this address stating your desire to be removed from our distribution list.