Tag: Florida Homeowners Association Law

It seems like every day, there are disputes between homeowners associations and its members, even though these disputes are supposed to be avoided by specific, detailed covenants and restrictions agreements residents agree to when they buy into these associations.

There are always going to be circumstances under which homeowners associations and property managers must take emergency action in order to secure the safety of the entire community. However, as highlighted by a recent news article, residents aren’t always happy about these actions, and sometimes resort to suing the association.

This Particular Proposal

In this particular circumstance, the association found itself in need of taking traffic enforcement into its own hands and proposed sanctioning residents if they were caught speeding because the local police department could not possibly manage the issue on its own, given the breadth of their jurisdiction. Under this proposal, repeat offenders could even have the bar codes that get them into the community suspended, forcing them to wait for a security guard to let them in. A first offense would simply produce a warning, but any other subsequent offense could result in a resident’s barcode being suspended.

More often than not—especially in states like Florida, where golfing is quite popular—windows within a homeowners’ and condo associations are damaged by the golf balls that fly in from nearby golf courses. In many of these associations, the golf course is private and open to those in the association adjacent to it. When someone buys into the community, they automatically become a member, and can use the course.

When something like this happens, who is responsible; the association, the golfer, the homeowner, or another party? Below, we discuss this liability, and who can be held responsible for it, in greater detail.

Liability Waivers in Association Documents

Most homeowners’ associations are protected in instances like these precisely because they have built a waiver of liability into the associations’ documents and under a legal theory known as “assumption of risk.” The language will typically say something to the effect of “owners assume all risks associated with errant golf balls and hereby agree not to pursue any claims against the association, golf club, or any other party other than the golfer.” Thus, paying for the damage or filing an insurance claim is often the responsibility of the owner.  This is akin to individuals who have residences near airports, but are frustrated by the noise; it can be difficult to successfully file a lawsuit based on that noise nuisance, given that the homeowner presumably chose the home, and knew it was near an airport.

As the Wall Street Journal reported this month, video evidence has emerged as a powerful tool in housing court battles, especially in exposing tenants who have fraudulently claimed rent-controlled apartments as primary residences in order to pass those rights onto relatives in violation of the law.

As a result, courts have recently upheld the rights of landlords to mount hidden security cameras in lobbies, hallways, and other shared spaces, in spite of tenants arguing that video surveillance is an intrusive form of harassment.

Many property owners and businesses establish video surveillance in order to provide for security measures, prevent crime, and protect customers. Thus, it makes sense that landlords and property managers would have some of the same rights as business owners, even if video surveillance is established in order to monitor tenants.

The Law in Florida regarding Surveillance Cameras

Recently, one of the largest home builders in the nation lost a $16.3 million judgment to a condo association after the judge found that it had engaged in deceptive practices, leaving the association in poor financial condition.

The company—D.R. Horton—started developing the association—Majorca Isles Master Association in Miami Gardens—back in 2005, but decided to stop building when the recession hit. Because of this, many of the condo owners stopped paying their fees, resulting in a deficit for the association. In response, the directors appointed by Horton diverted funds to pay the expenses of the associations, breaching their fiduciary duty to the association, and ultimately shifting the economic loss of the company to the homeowners themselves by cutting services and amenities.

When Horton turned over management of all the associations to the homeowners in 2011, they had gaping holes in funding, leading to a Chapter 11 bankruptcy reorganization filing. The company also failed to keep detailed financial records and mischaracterized the income, recording unpaid assessments fraudulently as assets in order to give off the false appearance that the association was solvent, even though it was not.