In almost all cases, condominium associations are required by their Declarations (sometimes referred to as the CC&Rs) to inspect, maintain, and preserve the association’s common areas (e.g., Fla. Stat. § 718.113.) Those are, in fact, among a condo association’s most fundamental duties.

If an HOA neglects those duties by, say, refusing to make necessary repairs to a community amenity, not only can a member (sometimes called a “unit owner”) of the condo association force the HOA to make the repairs, but that same member can hold the association liable for any damages the owner suffers as a result of the condo association’s unreasonable delay or refusal to make the necessary repairs.

In short, your condo association might be liable to you if it:

• ignores structural damage to a common area building that threatens to cause even greater damage down the road;
• neglects to make repairs to your community’s pool and spa, thus robbing you and the other members of its use during the hot summer months; or
• fails to slurry your association’s roads, resulting in potholes that damage your car.

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The Declaration of Condominium (sometimes referred to as the “Declaration” or as the “CC&Rs”) is the most important of your condo association’s governing documents. Your association’s CC&Rs constitute the rulebook for you and your condo association, spelling out the rights and obligations that you owe to each other and to your fellow unit owners. Your CC&Rs are, therefore, treated by law as a binding contract that addresses many very important issues, including: (i) the power and authority of the board of directors; (ii) what homeowners may do and not do with their properties; (iii) the association’s and homeowners’ mutual maintenance obligations; (iv) regular and special assessments; (v) lien rights and limitations; and (vi) the day-to-day management of the association. (Fla. Stat. §§ 718.111; 718.112.)

Even though your HOA’s board of directors enjoy many of the same powers and responsibilities as any corporation’s board, your condo association’s board is made up of volunteers who often have no experience running a business. Problems arise when board members either fail to do their jobs, or they act negligently, arbitrarily, or dishonestly. Typical Declaration violations by community associations include things like:

• failing to preserve, maintain, or repair the association’s common areas;
• failing to address another owner’s nuisance behavior;
• failing to enforce the association’s governing documents, especially when such failure is negatively affecting the rights of another unit owner;
• failing to properly manage or account for the HOA’s finances;
• failing to follow the election or meeting requirements; and
• harassing certain members or treating some unit member’s differently than others.

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Whether governed by the Florida Homeowners’ Association Act, the Condominium Act, or the Cooperative Act, all community associations in Florida must abide by the same antidiscrimination and antiharassment laws/regulations that other businesses do. This means that condo associations are not permitted to violate the state and federal laws established to protect people from harassment and discrimination (e.g., Florida’s Fair Housing Act, the Americans with Disability Act, the Florida Civil Rights Act of 1992, etc.). In fact, on September 4, 2020, Senate Bill No. 374 went into effect by creating a new law (Fla. Stat. § 712.065) that automatically voided any provision of an HOA’s CC&Rs that contained “discriminatory restrictions.” These laws not only prohibit discrimination and harassment on the basis of race, gender, sexual orientation, religion, disability, etc., but they also require condo associations to make reasonable accommodations to people with disabilities.

Many older associations had overtly discriminatory racial quotas in their CC&Rs. And while most of those CC&Rs have since been updated to remove such language, that does not mean that HOAs don’t regularly violate antidiscrimination laws. Many condominium associations still engage in conduct that violate rights of its members and residents by, for example:

• refusing to permit a resident from having a service or comfort animal (violates reasonable accommodation requirements; also violates other statutes, such as Fla. Stat. § 413.08; see Bhogaita v. Altamonte Heights Condominium Assn., 765 F.3d 1277 (11th Cir., 2014));
• refusing to permit a disabled resident from building a ramp (violates reasonable accommodation regulations); or
• attempting to fine a resident more than the statutory maximum (Fla. Stat. § 718.303);

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For the vast majority of people who live in communities governed by a condominium association, they live in close proximity to other people. In short, most people have neighbors. This is especially true in the case of condominiums, where everyone shares at least one wall or ceiling/floor with another unit owner. “Neighbor disputes” do, therefore, form the basis of many disputes between condo owners. Some of the more common claims that give rise to liability against a neighbor (and sometimes, the condo association) occur when your neighbor is guilty of:

• parking on your property, or otherwise blocking your access to your property by parking in front of your driveway or garage;
• allowing noxious odors to make their way onto your property (Merrill v. Bosser, No. 05-4239 COCE 53 (Fla. 17th Cir. Ct., 2005);
• trespassing;
• participating in illegal activities (e.g., drug dealing, non-permitted activities, etc.); or
• causing excessive noise—or for that matter, engaging in any other activities that interfere with your reasonable use and quiet enjoyment of your property. (Fla. Stat. § 718.106(3).)

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Simply put, your HOA’s common elements (also referred to as the “common areas”) refer to areas that are owned by the HOA (rather than by any particular member(s) of the condo association). (Fla. Stat. § 718.103(8).) While many associations have in common certain typical kinds of common areas, such as greenbelts/landscaping, sidewalks/walkways, swimming pools, and tennis courts, the other types of common areas you’re likely to see in an HOA have more to do with the type of association you joined. For example, in typical stacked structure communities (e.g., condominiums and townhomes), where the associations typically own everything but the air space in the individual units, the common areas you tend to find include things like roofs, hallways and staircases, parking lots/carports, HVAC systems, buildings, and plumbing/electrical. In communities consisting of single-family homes, on the other hand, you’ll often find streets, private gates, clubhouses, golf courses, equestrian facilities, and perimeter walls.

Regardless, because an association’s common areas are considered amenities by the members, and because they are often very expensive to construct and maintain, frequent common area-related disputes between homeowners and their HOAs arise regarding things like an HOAs:

• failing to make necessary repairs to the common areas;
• failing to reasonably maintain the common areas;
• neglecting a member’s damage to or destruction of the common areas;
• neglecting to take action against a member who has taken exclusive control over a portion of a common area;
• facilitating the transfer of some portion of the common area to a member without membership approval; or
• allowing the destruction of a portion of the common area.

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Unfortunately, human nature being what it is, homeowners frequently find that the board members of their condo associations “serve” because they enjoy the power that being on the board gives them, or they like to tell people what to do. These people are the ones who treat their association’s like their own personal fiefdoms, often granting themselves and their friends privileges that they deny to other unit owners, or acting arbitrarily and capriciously. Such selective enforcement is illegal. (Prisco v. Forest Villas Condominium Apartments, Inc., 847 So 2d 1012 (Fla.App. Dist.4, 2003); White Egret Condo., Inc. v. Franklin, 379 So.2d 346 (Fla. 1979).)

You may have a claim against your HOA for selective enforcement if your condo association:

• allows a board member to enjoy a perk or privilege denied to other similarly situated members;
• denies your application for an improvement to your home after having already approved applications from other similarly situated members;
• strictly enforces certain rules against you while ignoring similar violations of other members; or
• arbitrarily enforces certain rules while ignoring others.

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In simple terms, negligence is the failure to act reasonably in a given situation. If your condo association and/or neighbor cause damage to you or your property as a result of unreasonable conduct on their part(s), you may file a claim for negligence.

For example, you may have a strong negligence claim against your HOA/neighbor in any of the following types of situations:

• your neighbor changes the grading on his or her property (with or without permission from the HOA) causing water to flow onto your property that in turn causes leaking and property damage;
• your HOA fails to reasonably maintain the common areas, resulting in expensive replacements and repairs; or
• your HOA’s board ignores its accountant’s advice and fails to dedicate sufficient funds to hold in reserve to fix certain assets owned by the association.

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If you live in a Florida condominium, then you and your condo association’s are subject to the Florida Condominium Act. Unfortunately, despite the fact that condo associations like yours are required to abide by the Condominium Act, many associations don’t bother doing so. Sometimes, it’s because a member of an HOA’s board is ignorant of all the laws that control condo associations, and sometimes it’s because the board members don’t care.

For example, a lot of condo associations violate Florida law by:

• ignoring election requirements;
• refusing to maintain proper reserve accounts for future maintenance, replacement, and repairs of the common areas;
• failing to properly account for the HOA’s funds;
• violating a member’s due-process rights, such as the right to a hearing before being fined for a transgression;
• refusing to allow members to own a pet; or
• disregarding “sunshine” or open meeting requirements.

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