John C. Goede
Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.
Q: Our board recently levied a fine for $200 against an owner for two parking violations. The owner is asking to bring his attorney, and our manager said that was not allowed. We want to make sure we do this properly. Can the attorney attend?
— P.R., Treasure Coast
A: Yes, the attorney should be allowed to attend the fine hearing. Broadly, the fining process is mostly about providing due process and a fair opportunity for the owner to argue why the fine or suspension should not be imposed. This is exceptionally difficult to do because there are very few rules on how these hearings should be conducted.
Because the fining process exists to provide an in-house enforcement mechanism, many disputes which end up in a courtroom really focus on whether the Board provided sufficient due process to uphold the in-house enforcement mechanism. As a result, the attorney should be allowed to represent the owner at the hearing and argue on behalf of the owner. Admittedly, I have frequented a number of hearings where the owners’ attorney uses the hearing just as an opportunity to threaten the Board or committee with lawsuits and litigation, but the committee should ensure that the owner has a fair opportunity to defend against the potential fine or suspension. If the hearing gets out of control, obviously it should not be permitted to continue in an unruly or threatening environment, but I always urge clients to error on the side of providing more due process than may be necessary to mitigate that potential defense to liability for an approved fine.
Q: A downstairs unit suffered water damage in our condominium building and we are fairly certain the damage is coming from the shower pan in the upstairs unit. The owner of that upstairs unit is refusing access and won’t let the association fix the common elements. The owner has represented that he fixed the problem, but he won’t let us confirm that the damage has been mitigated. What do we do now?
— T.B., Stuart
A: This is more common than you would think and it is unfortunate because standoffs over access will typically only exacerbate any water damage while the parties try to figure out how to mitigate the damage.
The short version is that the association has the right of access. In fact, the statute provides that the condominium association has the “irrevocable” right of access.
Specifically, Section 718.111(5) provides that “the association has the irrevocable right of access to each unit during reasonable hours, when necessary for the maintenance, repair, or replacement of any common elements or of any portion of a unit to be maintained by the association pursuant to the declaration or as necessary to prevent damage to the common elements or to a unit.”
The basis of this statute is that owners should not be able to prevent the association from protecting its own property, mitigating damage and preventing damage from spreading to other surrounding units. Thus, if there are legitimate concerns that there is water damage between units and the owner is refusing access, the association should gain access pursuant to the above statute.
That being said, quoting the above statute may not get the association in the front door. In a condominium, the appropriate mechanism is to pursue an action in arbitration with the Florida Department of Business and Professional Regulation, DBPR.
The Florida DBPR employs arbitrators that are tasked with hearing disputes on many issues involving condominiums and unit owners, but specifically they are authorized to hear cases and serve as arbitrators on issues of access.
Assuming the facts are in the association’s favor, the arbitration route should provide a cheaper and faster resolution for the association compared to the court system. Before you can go to arbitration, you first need to provide a notice of the association’s intent to file an arbitration action and we highly recommend that you consult with legal counsel during this process to make sure the dispute is ripe for arbitration, that you provide all necessary notices and that you review your specific documents to look for any self-imposed requirements in enforcement actions.
The other wrinkle to this question is that there is a very new law that will provide an alternative mechanism. Effective July 1, 2021, condominiums are not forced to use arbitration for this type of dispute.
Disputes concerning elections and recall efforts must still utilize the arbitration dispute resolution process, but the parties are also authorized to pursue mediation and the court systems. This later dispute resolution using mediation and the court system is currently the vehicle required by the statutes governing homeowners’ associations for disputes in homeowners’ associations.
In short, in lieu of arbitration, condominiums can offer to mediate with the party refusing access — or violating some other part of the covenants — and then seek relief through the court system if mediation is either refused or unsuccessful.
In arbitration, the arbitrator is tasked with picking a winner. In mediation, there is a neutral third party whose role is to help the parties find a solution that is agreeable to both parties and therefore avoid having the courts to pick a winner.
Depending on the specific facts and circumstances in your case, your board may choose to pursue arbitration or mediation. We also recommend you consult with your legal counsel to help guide the association through these strategic decisions.
John C. Goede, Esq., is partner of the Law Firm Goede, Adamczyk, DeBoest & Cross. Visit www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com.
The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys.
Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.
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