Community Association Industry Legal Blog

Florida’s community associations are largely governed by two main sources of authority: (1) the Florida Condominium Act (for condo associations) and the Florida HOA Act (for homeowners’ associations); and (2) the association’s governing documents. While court opinions, State of Florida arbitration decisions and the Florida Administrative Code also govern community associations, these sources largely rely on the Florida Statutes, association governing documents, or both, for any given issue. Concerning the hierarchy of this authority, the Florida Condominium Act and the Florida HOA Act (collectively referred to as the “Acts”) will trump community association documents (i.e., declarations, bylaws, articles of incorporation and rules and regulations). Stated another way, the Acts ultimately have the final say if the governing documents are silent or contradict the Acts on any issue. Because association documents are subordinate to the Acts, an association’s declaration that does not contain Kaufman Language is stuck in the past.

A condominium association’s governing documents in conjunction with Section 718.116, Florida Statutes, are the genesis of the condominium association’s authority to impose and perfect assessment liens against individually owned units and parcels within the community. This four-part blog will discuss the condominium association’s right to lien, perfecting the condominium association lien, and collection practices for condominium associations. Part I will discuss the condominium association’s authority for asserting liens.

A major expense for many homeowners’ and condominium owners’ associations is the cost of the utilities for common areas of the communities. The good news for such associations, however, is that they are entitled to an exemption for the sales tax related to their utilities as long as a few requirements are met—a fact of which many associations are not even aware.

After the housing bubble collapse, the Florida Legislature ratified numerous amendments to the Florida Condominium Act and Homeowners’ Association Act to provide associations with more power in collecting past-due assessments. One amendment obligated lenders that foreclose on properties owing past-due assessments to pay, at the very least, a certain statutory amount to the governing association (see Fla. Stat. §§ 718.116; 720.3085). Nevertheless, if an association’s declaration waives any and all liability of a mortgage lender, then that association is precluded from collecting even the statutorily approved amount. The pressing question for all board members and community association managers is whether or not your governing documents allow your association to collect from foreclosing lenders. If not, your association could be missing out on thousands of dollars.

Community Association Managers (CAMS) in Florida are vital to the survival of condominium associations and homeowners’ associations. Associations and their board members rely on CAMS to ensure the associations run smoothly. CAMS must be licensed through the Florida Department of Business and Professional Regulation, and are governed by the Florida Statutes and the Florida Administrative Code. See Fla. Stat. 468.431-461.438 and Florida Administrative Code 61E14-2.001.

Whether your community association is a Homeowners Association, governed by Chapter 720, Florida Statutes, or is a Condominium Association, governed by Chapter 718, Florida Statutes, there are important things the Community Association Board (hereinafter the “Board”) should know and important actions that a prudent Board should consider at turnover.  A […]

In 2014 the Florida Condominium Act (the “Act”) was amended to make it easier for Condominium Associations to recover past-due assessments from third-party purchasers at a mortgage foreclosure sale.  The longstanding Florida law is that a condo unit owner is jointly and severally liable with the prior unit owner for […]

Leases for residential real property are governed by Florida Statute Sections 83.40 through 83.682; leases for commercial real property are governed by Sections 83.001 through 83.251. In addition to these statutory requirements, landlords and tenants must understand their rights and obligations under their written lease agreement. The focus of this post is landlords’ and tenants’ rights and obligations, under residential and commercial leases, to maintain the leased property.

For lenders, prior to taking a mortgage on property within a condominium or homeowners’ association community, it is important to review and understand the association’s governing documents (declaration, by-laws, and articles of incorporation) to determine the priority of an assessment lien and a mortgage. Just because a mortgage was recorded prior to the assessment lien, does not mean the lender’s mortgage will take priority over the association’s assessment lien. The language of the association’s governing documents is critical in determining the priority of these encumbrances.

The directors of Florida community association are obligated to discharge their responsibilities to the community in good faith. Board decisions are generally protected by the “business judgment rule” and the theory behind the business judgment rule is that Courts should not substitute their judgment for the judgment of the elected or appointed board members. Simply stated, Courts must give deference to a community association’s decision if that decision is within the scope of the association’s authority and it is reasonable – that is, not arbitrary, capricious, or in bad faith.