Owner’s Guide to Florida HOA Laws

GOOD HOA v. BAD HOA

A good HOA plays an important role in maintaining your property values and ensuring your quiet enjoyment of your property.

A bad HOA can decrease the value of your home, force you to needlessly waste thousands of dollars, and turn your life upside down.

Good HOAs are priceless. Bad HOAs are a nightmare.

Good HOAs help make your home a place of comfort and relaxation.

Bad HOAs make your life a living hell.

FLORIDA COMMON INTEREST DEVELOPMENTS

More and more Floridians today live in common interest developments made up of a variety of different types of homes, from single family homes (i.e., detached homes) and condominiums, to high-rise apartments and townhomes. What all common interest developments have in common, however, is that they are governed by an association of owners who enjoy the use of shared common areas and amenities.

No matter what kind of common interest development you live in, if it’s located in the State of Florida, then your development is governed by one of three separate sets of laws:

• The Homeowners Association Act
• The Condominium Act
• The Cooperative Act

WHAT IS AN HOA?

Homeowners’ associations (“HOAs”) are associations formed, in some cases as non-profit corporations, to own and manage common interest developments. If you own a single family home, your HOA might be referred to just as an “association,” while if you own a condominium, your HOA might be called a “condo­minium association.” For purposes of this Guide, however, the term HOA will encompass all such common interest development associations. The shareholders of HOAs (or “members,” as they’re more commonly referred to) own not only their individual homes/units, but a piece of the common areas through their membership in their HOAs.

WHO RUNS MY HOA?

Your HOA is governed by a board of directors, just like any corporation. And so, like any corporation, your HOA has the power and authority (and in some cases, obligation) to:

• Adopt Rules
• Discipline members
• Enforce governing documents
• Invest HOA funds
• Maintain common areas
• Obtain insurance
• Create committees
• Set and control elections
• Hire managers & attorneys
• Disburse reserves
• Approve and enter into contracts
• Call meetings
• Select officers
• Hire vendors and contractors
• Adopt budgets
• Pay HOA expenses
• Collect assessments

Now, under Florida law, a company’s board of directors is shielded from liability for decisions made on their cor­porations’ behalf as long as: (i) their decisions were made within the course and scope of the board’s authority; and (ii) the decisions were not arbitrary, capri­cious, or made in bad faith (i.e., the decisions were rea­sonable).

This shielding doctrine is known as the business judgment rule (“BJR”), and courts in Florida have held that it applies to boards governing HOAs. This means that HOA boards are given a lot of leeway and protection from decisions they make-even when such decisions, in hindsight, turn out to be bad ones. In theory, this seems to make sense.

The problem, however, is that for the most part, HOA board members have little to no experience running a business—espe­cially ones worth millions of dollars. There are exceptions, of course. But that’s what they are—exceptions. Think about it. If your HOA is large (i.e., has lots of homes and common elements), then it’s quite possible that it has extremely valuable assets. This is especially true if, for example, your HOA has amenities like swimming pools, tennis courts, club houses, beach-related services, etc.

Obviously, many boards hire management companies, accountants, lawyers, contractors, and other profes­sionals to help them properly manage their HOAs. None of that, however, alters the fact that the decisions are ultimately being made by lay people, most of whom have little experience in running a business.

And those problems exist even in cases where board members who are truly working for the betterment of their communi­ties. Unfortunately, and more frequently than many would like to admit, homeowners find themselves dealing with board members who like to tell other homeowners what to do, or who refuse to properly manage the HOA. Sometimes, board members are dishonest, while others are just jerks who like to seize, and then flaunt, their authority. That’s when homeowners really need help.

YOU HAVE OPTIONS WHEN YOUR HOA ACTS IN BAD FAITH

Problems arise when board members either fail to do their jobs (e.g., they refuse to enforce the governing documents or maintain the common areas), or they act arbitrarily, dishonestly, or capriciously. When that happens, homeowners have options.

For example, homeowners have a right to demand a recall. Homeowners can recall the entire board, or just a specific member of the board. The specific proce­dures involved depend upon what, if anything, the HOA’s governing documents say on the subject. If the governing documents are silent on the issue of recalls, then HOA members can force an election and remove a director (or the entire board) if a majority of them vote to do so.

If, however, the CC&Rs (or any of an HOA’s other governing documents) spe­cifically say so (or if you live in a condominium), one or more board members could be removed at a special meeting of the members called by at least 10% of the voting members. Such removal would, of course, occur without requiring a majority vote of the members or even a formal election. Again, it depends upon what an HOA’s governing documents say. policies as part of their election procedures, so be sure to look at those carefully.

Homeowners can also file a lawsuit against the HOA. Now, while it’s true that filing a lawsuit should always be a last resort, it is also true that homeowners typically only contemplate such drastic action after they’ve tried to resolve the dispute in other ways.

Assume, for example, that the dispute at issue involves the HOA’s demand that a homeowner take down a shed erected in the owner’s backyard. The homeowner might try to point out that many of his/her neighbors have similar sheds and the HOA is not requiring them to take their sheds down.

Such a homeowner might appeal to the HOA’s management company, and/or write emails to the board, and/or even speak up at board meetings. Only after getting nowhere might the homeowner consider liti­gation to force the HOA to treat everyone similarly.

Or, take for example the condominium owner who is having a dispute with his/her neighbor about excessive noise coming from the neighbor’s floor (and the owner’s ceiling). Perhaps the noisy neighbor is unreasonably loud, or perhaps he/she is not permitted to have bare floors under the association’s governing documents.

Regardless, after trying to resolve the dispute infor­mally with the neighbor, the homeowner might decide to get the HOA involved by demanding that it enforce the anti-nuisance provision that is likely contained in the association’s governing documents.

Again, such a homeowner might write the management company, appear at board meetings, and even try talking to indi­vidual board members. But if that homeowner gets nowhere, he/she might not have any other choice but to file suit against the neighbor and the HOA.

ALTERNATIVE DISPUTE RESOLUTION

In many cases, the homeowner is required to demand that the HOA/neighbor engage in alternative dispute resolution (ADR) before filing a lawsuit against the HOA or another homeowner. This almost always takes the form of mediation, which is just another word for formal negotiations. There’s no evidence presented and no witnesses testifying (like there might be at an arbitration, something that should never be confused with mediation). It’s just each side, their respective attorneys, and an impartial mediator (often a retired judge or an experienced attorney).

Although Florida’s different HOA-related laws only require the parties to participate in ADR prior to filing certain types of lawsuits, more often than not homeowner/HOA disputes can be resolved through the ADR process. ADR, therefore, in addition to sometimes being required by law, often plays a vital role in helping homeowners resolve disputes with their HOAs or neighbors.

Even in cases where ADR isn’t required, therefore, it’s still often in a homeowner’s best interest to invite the HOA to engage in ADR. This is true for several reasons:

• An ADR demand tells the HOA that a homeowner is serious about whatever dispute is at issue
• A homeowner is more likely to successfully obtain a concession that the homeowner wants but is not necessary legally entitled to (i.e., it wouldn’t be an available remedy if a lawsuit became necessary)
• ADR demand provides an opportunity for the homeowner and the board to have one-on-one time to hash out the dispute
• Both sides get to hear the opinions of an experienced, knowledgeable, and impartial mediator regarding the dispute
• Homeowners often have more limited funds to work with than HOAs do

For the reasons stated above, and because ADR can so often resolve a dispute between a homeowner and the HOA (even a serious dispute), taking advantage of the ADR process, even when not technically required, often proves much more beneficial to the homeowner than to the HOA.

FREQUENTLY ASKED QUESTIONS & ANSWERS ABOUT FLORIDA HOAs

As you might imagine, homeowners have a lot of basic questions about their rights (and obligations) relating to their HOAs and neighbors. In no particular order, here are just a few of those questions (with brief answers):

Q: Is my HOA obligated to enforce the CC&Rs against other homeowners?

A: Yes. HOAs can be held liable for not enforcing their own governing documents, including the CC&Rs.

Q: I live in an HOA, and I think my HOA’s board of directors is corrupt. I’d like to force a recall vote. Can I do that?

A:Yes. But how will depend upon what your governing documents say, as well as in the type of community you live in (single family home v. condominium association). If you live in a single family home and your governing documents permit it, subject to some statutory notice requirements, if 10% of the members of your HOA (you included) agree, you can force a special meeting of the members and simply remove one or more directors at the meeting. If you live in a condominium, you have that right regardless of whether your CC&Rs address the issue.

Q:The leaves and roots from my neighbor’s trees are causing damage to my pool. The leaves stain my expensive pool decking, and the roots have caused cracking in my yard. Do I have a claim?

A: Unfortunately, not under Florida law. Florida follows what’s known as the common law, under which landowners are not liable to neighbors for any damages caused by branches or roots of living trees on their properties. Your remedy under the law is to trim those branches/roots up to the property line (but no further, or you could be liable to your offending neighbor).

Q: Can my HOA charge me a fee when I sell my condominium?

A: Because you said you owned a condominium, the answer is most likely “No.” The exception to that “No” exists in cases where an HOA is required to approve condominium sales in your community, and the fee is specifically referenced n the Association’s Covenants (i.e., the CC&Rs). And even when both of those factors are present, the fee cannot exceed $100. If, however, you didn’t live in a condominium, the answer would be “Yes.” The Homeowners’ Association Act does not have the same limitation that the Condominium Act does. So, non-condominium properties are subject to such capital contribution fees if the Covenants call for them.

Q: I want to get a look at exactly how my HOA has been spending HOA funds. What do I ask for?

A: Florida law requires HOAs to provide a whole host of records to any HOA members who request them, including various financial documents. If you want to see exactly how your HOA has been spending its money, demand to see a general ledger for the HOA over the prior two years.

Q: I live in a condominium complex where our board president has been serving for 10 years, during which time he’s used his power to make life difficult for his “enemies.” What can I do to get rid of this guy?

A: You could always initiate a recall election to get him removed. But before going to that trouble, answer this simple question: Have at least 2/3 of the members of your HOA voted to permit this man to stay in office? Florida law prohibits anyone from serving more than eight consecutive years on a condominium HOA’s board without the affirmative vote of at least 2/3 of the members (unless there are not enough eligible candi­dates to fill existing vacancies).

Q: Can my wife and I serve on the board of my con­dominium complex at the same time?

A: Not unless you and your wife own more than one unit in your complex. If you don’t own multiple units, then Florida law prevents co-owners from serving at the same time.

Q: Can my condominium’s HOA prevent me from installing a device to charge my Tesla?

A: Subject to reasonable exceptions (e.g., the installation can’t result in irreparable damage to the condomini­um property, it must be separately metered, you must carry additional insurance, and you’re otherwise in com­pliance with local building codes), the answer is “No.” Your HOA cannot prevent you from installing a charging station “within the boundaries of [your] limited common element parking area.”

Q: My neighbor has allowed his trees to block my view. Do I have a right to protect my view?

A: It depends on whether or not your governing docu­ments protect your view. This issue can be complex because even the definition of what constitutes a view can be problematic. But, generally, absent specific language in an HOA’s governing documents, homeown­ers do not have a right to a view. A lot of HOAs, however, do have some language aimed at protecting owners’ views, or at least requiring that plants be trimmed to a reasonable level. Such provisions are, for example, often found communities with ocean views, where homeowners pay a premium for a view.

Q: I own a rental property and I happen to be a bit behind in paying my monthly dues. Now my HOA is demanding that my tenant pay them the rent instead of me. Can the HOA do that?

A: Yes. Under both the Homeowners’ Association Act and the Condominium Act, HOAs have the right to require tenants to pay rent to the HOA until the owner is current on his/her assessments. Additionally, not only are owners like you prohibited by law from retaliating against their tenants for paying rent to the HOAs in such cases, but if the tenant refuses to pay such rent, HOAs have the legal right to evict the tenants.

Q: During a recent storm, my neighbor’s tree fell over and completely destroyed the wall separat­ing our two properties, as well as my side gate. Most of the tree is now laying across my front yard. Is my neighbor responsible for paying for the repairs to my gate? What about the wall? And who is responsible for paying people to chop the tree up and remove it?

A: You asked three very good questions, so I’ll take each one in turn. Assuming that the tree that fell onto your property was not dead prior to the storm, and assuming that your neighbor wasn’t somehow negligent (i.e., if the tree fell because of an act of God), then you are responsible for fixing your own gate, and you’re responsible for the clean-up efforts on your property. With respect to the shared wall, however, assuming the wall is on the property line, I would argue that both of you are responsible for 50% of the repair costs.

Q: When I lived in California, my HOA had a rule that members couldn’t record HOA meetings, and the lawyer for the HOA said that such restrictions were legal. I currently own a home in Florida, and I’m wondering whether or not my HOA here can prevent me from video recording the HOA meetings.

A: You’re correct that in California the law permits HOAs to set their own rules about whether to allow members to video/record meetings. The law is a bit different here in Florida, however. The Homeowners’ Association Act protects a member’s right to record HOA meetings, subject to reasonable restrictions.

Q: I was thinking of running for a board seat in the next election, but a friend—who owns a condominium in the same complex as me—told me that I will have to take a class before I can serve. Is that true?

A: No, not necessarily. I think your friend was referring to the law aimed at: (i) ensuring that all board members are familiar with the HOA’s governing documents; and (ii) having the board members promise to faithfully uphold provisions of those documents. Florida law allows a new board member to either certify in writing that he/she has read the govern­ing documents (e.g., articles, bylaws, CC&Rs, and rules), will faithfully uphold and enforce them, and honor his/her fiduciary duties, or take and complete a class offered by a division—approved condominium education provider. So, your friend has a choice.

Q: I hate carpet. Can my HOA ban hardwood flooring?

A: Yes, if that prohibition is in the CC&Rs. There are exceptions, however, to enforcing such bans. For example, a homeowner who suffers from severe aller­gies could compel the HOA to grant an accommoda­tion—provided, of course, that the hardwood flooring doesn’t cause a noise nuisance to another resident (e.g., someone living below).

Q: I’ve had my dog for six years (he’s a large dog and weighs over 100 pounds). A year ago, however, my HOA amended our covenants to prohibit dogs weighing more than 75 pounds from living in our community. Can they make me get rid of my dog?

A: No. That would be particularly cruel. The new rule will only apply to members of your HOA who voted for the change, or who purchased (or will purchase) their homes after the date the new rule went into effect. In other words, your current dog is “grandfathered” in. As an FYI-even with the restriction in place, disabled members of your HOA would still be entitled to have service animals, and may even be entitled to emotional support animals (there are some pending federal cases on this issue).

Q: A leaking roof in my condo caused a lot of damage to my home. Is the HOA responsible for my repair costs and damage to my things?

A: It depends. First, in the case of a condominium, it’s very likely that the HOA is responsible for repairing the leaky roof. However, that doesn’t necessarily mean that the HOA is responsible for your interior repairs or damage to your things. That would depend on whether you could prove that the HOA was negligent or not. For example, if you could show that the HOA knew about the problem that led to the leak, or that the HOA negligently failed to repair something that resulted in the leak, then you could likely prove negligence, and the HOA would be liable for your damages. But, absent such negligence on the HOA’s part, you will be responsible for damage to the interior of your unit, as well as your personal property.

Q: Can my HOA ban sober living/drug treatment homes?

A: Unfortunately, the answer is probably “No” (at least at the present time). Under both the Fair Housing Act and the Americans with Disabilities Act (the latter of which qualifies drug and alcohol addiction as covered disabili­ties), an HOA’s refusal to allow such “homes” to operate within its boundaries might be illegal under the reason­able accommodation requirement of the ADA. That does not, however, mean that there are not things your HOA can do to minimize the impact of such facilities, or even to discourage them from setting up shop in your neigh­borhood. But, until the federal and state governments get their acts together to prevent such “homes” from invading true single family neighborhoods, the curse of the sober living homes will remain alive and well.

Q: Can my HOA ban me from renting out my condominium?

A: If the ban on rental properties was in place before you purchased your condominium, then the answer is “Yes.” If, however, the ban went into effect after you pur­chased your property (and assuming you didn’t actually vote in favor of the ban), then the ban on rentals will not apply to you. You’re fortunate that you live in a condominium instead of, say, a single family home. Under the Homeowners’ Association Act, if the governing docu­ments are amended to include a rental cap, the amend­ment would apply to all homeowners.

Q: We have an election coming up. Do existing board members have rights that I don’t have if I want to run?

A: No. Homeowners running for the board are entitled to equal access to the HOA’s media and common area meeting spaces. So, if an HOA has a monthly newslet­ter (as many of them do), if any board member running for reelection uses that newsletter to campaign (i.e., if he/she does anything other than just sticking to general matters), the HOA is required to provide equal access to all candidates. Also, no HOA funds can be used for campaign purposes, so current board members shouldn’t be using HOA funds in any way related to their reelection.

Q: I’m on the board of my HOA. Prior boards ignored several requirements contained in our association’s governing documents (e.g., they allowed pets despite the no pets rule), and then when a homeowner challenged our enforcement, we lost in court. How can we ensure that we can enforce those rules in the future?

A: You probably lost because the homeowner claimed a defense of waiver or selective enforcement. There is, however, something the board can do to undo any such waiver or selective arguments. The board could, for example, send a notice out to all the homeowners informing everyone that the board intends to start enforcing the rules consistently. The notice would need to specify the rules, regulations, or bylaws at issue, and then provide a specific date from which enforcement would begin.

Q: I’m currently serving on the board of my HOA. I suffered a business set back recently, and am a little behind in my assessments. A neighbor in whom I confided told me that I had to resign. Is that true?

A: It depends on how long you’ve been behind. If you weren’t already on the board, then you wouldn’t be eligible to be on the ballot or serve on the board until you became current. Because you’re already on the board, however, Florida law gives you 90 days to become current. If you fail to do that, you’ll be deemed to have abandoned your position as of the 91st day.

Q: My HOA not only raised our regular dues, but it just assessed everyone in my condominium community a several thousand dollar special assessment to bulk up our reserves and hire a structural engineer to conduct a major inspection of all our buildings. We’ve never had any issues with any of our buildings, so is this legal?

A: Yes. I’m sure you remember the tragic collapse of the Surfside Condominiums in Miami. As a direct result of that tragedy, the Florida legislature passed SB 4-D, which went into effect on May 26, 2022. The new law establishes a slew of new requirements for certain types of association buildings, including condominiums, that are three or more stories high. Among other things, the new law requires applicable housing developments to hire licensed engineers or architects to conduct periodic inspections of a building’s major structural components. Associations are also required to abide by new reserve study obligations. In light of the above, associations that don’t have sufficient funds to conduct such inspections have no choice but to raise those funds through special assessments, and many associations who are not yet required to conduct inspections, are preparing for the future by raising regular dues.

Q: My HOA is giving me a hard time regarding my application to install solar panels on my roof. Doesn’t the law protect homeowners’ rights to install solar panels?

A: Without specific details regarding how your HOA is giving you a hard time, it’s difficult to properly answer your question. I can, however, provide you with some general information. You are correct that Florida law protects a homeowner’s right to install solar panels on his/her roof. But that right isn’t absolute. HOAs may still require homeowners to comply with certain reasonable procedures before they can install the panels. For example, while HOAs can have a say regarding the layout and location (on the roof) of the solar panels, they cannot, for example, order installation on a part of the roof that’s shaded by a tree. The bottom line is simple. HOAs can insist on reasonable restrictions, but they can’t prevent you from installing solar panels.

Q: I heard that it was illegal for an HOA to issue debit cards tied to an HOA account to board members. I just found out that members of the board in my association all have debit cards. Am I wrong, or is my HOA wrong?

A: It depends. If you live in a condominium, then you’re correct, and your HOA is wrong. Under Florida law, condominium associations are banned from issuing debit cards to board members. But, if you live in a single-family home or stock cooperative, no such law exists. Assuming you live in a single-family home, for example, just because debit cards aren’t banned, doesn’t mean it’s a good idea to issue them. You might be able to convince your HOA to stop the practice by publicizing the potential for fraud that comes from issuing such cards.

Q: My HOA was conducting some maintenance that required them to tear into the tile work I recently installed on my property. Now they are refusing to pay to replace my tiles, claiming instead that they’re not obligated to do so because my tiles are an upgrade to what was there before. What are my rights here?

A: As unfair as it sounds, it’s possible that your HOA is correct. It’s also possible, however, that they’re wrong, in which case they will have to pay for your tile replacement. It all depends on the wording of your governing documents. If your governing documents contain language requiring the HOA to cover “incidental damage,” then if the HOA damages any portion of your property while they’re performing maintenance and repairs, the HOA will likely be responsible for your repair costs.