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06/27/13 It's The Law: How to Force an HOA to Enforce Rules

It's The Law

How to Force an HOA to Enforce Rules



My neighbor is building a gazebo, and it is ugly. The Covenants in our neighborhood prohibit construction of accessory structures, which I think includes gazebos. I can't get the homeowners association to take action to enforce our Covenants. Can I sue the association to make it enforce the rules?


The first problem you may face is that your homeowners association might not even have authority to enforce the neighborhood Covenants. Although the Legislature has given increased attention to homeowner associations and including association powers and duties at Section 720.303, Fla. Stat., authority to enforce Covenants must be found in the Covenants. There have been a number of court cases in Florida finding associations lack authority to enforce Covenants or restrictions where the restrictive Covenants do not give that power to the association.

If the Covenants do not grant the association authority to enforce, there is still hope. If the developer assigned the developer's authority to enforce the Covenants to the association before sell-out of the project or otherwise ceasing to qualify as the developer, the association will likely have authority to enforce. Those assignments are generally recorded in the Public Records just like the covenants.

Absent assignment of authority to enforce from the developer or authorization to enforce in the covenants, the association may be powerless to enforce. That would leave enforcement up to individual unit owners on the basis that the owners are benefitted by the restrictive covenants as a contract and therefore have right to enforce them.

Even if the association has enforcement power, you may be traveling a difficult road if you want to force the association to take action. It all depends on the language in the covenants. The recent case of Heath v. Bear Island Homeowner's Association, Inc. is an example.

In Heath, a member of a homeowner's association sued the association for an injunction requiring the association to enforce its covenants and restrictions. Heath claimed a number of residences in Bear Island had made changes, modifications or improvements without first obtaining approval from the association, as required by the restrictive Covenants.

The Court ruled that the association had no legal obligation to enforce the covenants. Article XII of the covenants provided "the developer, the association or any individual may, but shall not be required to, seek enforcement of the Declaration." The Court concluded that language made enforcement discretionary and that Heath had no clear legal right to a mandatory injunction.

Language of the restrictive Covenants in Heath was controlling. But, it may not always. In the older case of Bearfield v. Lafayette Oaks Homes Association, Inc., the association twice rejected a homeowner's plans to build a horse pen. Even though the plans were rejected twice, the homeowner began construction anyway. The association took no action to prevent construction, although the governing documents clearly authorized enforcement action by the association.

Bearfield sued the horse pen owner and obtained an order requiring the pen be torn down. Bearfield next sued the association seeking damages and attorney's fees. The Trial Court dismissed the claim ruling there was no duty on the association to enforce the restrictive covenants and Bearfield appealed. The Appellate Court reversed and pointed out that virtually identical covenants had been interpreted in other cases as imposing a requirement of reasonableness on a homeowner's association when deciding to waive subdivision restrictions. It went on to explain that Bearfield had alleged unreasonable behavior and that there was no reason to refuse to enforce the association's duty of reasonableness under the restrictive covenants. It ruled that Bearfield should have been allowed to produce evidence as to the interpretation of the restrictive covenants and sent the case back for trial.

Southfields of Palm Beach Polo & Country Club Homeowner's Association, Inc. v. McCullough is yet another case in which a homeowner successfully forced an association to take action. In that case, restrictive covenants were expiring under a Florida statute that ended them unless they were renewed by the appropriate homeowner's association. The Court ruled that the directors of the homeowner's association had a duty to protect the community and the restrictive covenants and ordered it to do so. The Court noted, without such board action, the restrictive covenants would begin to lapse and ultimately expire.

The Florida cases make it clear that homeowners can force their homeowner association to take action enforcing restrictive covenants. But, may not succeed if the association lacks the enforcement power or when enforcement is discretionary. Power and discretion are as set out in the governing documents. I suggest you review your governing documents with an experienced attorney for advice concerning further action.

By: William G. Morris, Esquire

William G. Morris is an attorney with offices at 247 North Collier Boulevard on Marco Island, Florida. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.

Questions for this column can be sent to: William G. Morris, e-mail: wgmorrislaw@embarqmail.com or by fax, (239) 642-0722 or

The Marco Island Eagle

Other articles of interest can be viewed at our website, www.wgmorrislaw.com.

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