By Curtis G. Kimble.
How to obtain compliance when enforcing a violation of the governing documents can be one of the most vexing problems in a homeowners association. One of the chief functions of a homeowners association is enforcement of the covenants and rules governing the community. Even though the individual property owners ordinarily have the power to enforce the covenants, collective enforcement by the community is one of the main benefits of owning property in a common interest community. However, every board must act reasonably in exercising enforcement powers and must pay careful attention to the law and the association governing documents. The duty to enforce should not be confused with a requirement for maximum enforcement in all cases.
An association has the duty to use ordinary care and prudence in managing the property and financial affairs of the community, as well as the duty to act reasonably in the exercise of its discretionary powers, including rulemaking, enforcement, and design-control powers. One aspect of these duties is the duty to avoid creating unreasonable risks of harm to property values by failure to provide for the long term protection and preservation of the property. On the other hand, overzealous enforcement can create serious problems, including protracted litigation, divisiveness, and disaffection with the community, among other things.
Accordingly, a board must make an informed decision and exercise careful judgment in decisions regarding enforcement. This fact was completely lost on a board in a Florida homeowners association in a case called Parton v. Palomino Lakes Property Owners Association, Inc.
The governing documents of the Florida association prohibited mobile homes. A lot owner decided to install a modular home and attempted to have it delivered to the lot. Three board members literally blocked the delivery of the home by blockading the entrance to the subdivision. This happened on three different occasions.
The lot owner sued the association and the board members individually and won. The owner was awarded punitive damages of $40,000 against one board member, $50,000 against another and $60,000 against the other. The owner was also awarded compensatory damages and their attorney fees.
Sometimes “self-help” by the board (correcting a violation directly) is allowed by an association’s governing documents. For instance, it’s possible that a board may be able to have a professional come in and remove the three feet tall weeds on a lot and charge the cost back to the lot owner.
But how far is a board allowed to go? Can a board prevent a non-compliant or delinquent homeowner from access to and from the owner’s lot or unit? Generally, the answer is absolutely not and the failure of this Florida board to make an informed decision and exercise careful judgment before they acted had drastic consequences. Such extreme personal liability could have been easily avoided if the board had consulted with a qualified attorney beforehand.