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Subject: Owner vs Owner violation enforcement
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GenoS
(Florida)

Posts:3234


09/08/2019 2:53 PM  
I see and hear all the time that individual homeowners can enforce the governing documents themselves as a private action even if the HOA itself does not. That's written in the Florida HOA (and condo) statute explicitly. Also, our CC&Rs spell it out explicitly, too.

What I haven't seen are accounts of where such enforcement has actually happened. Does anyone have any knowledge of such ownver vs. owner violation enforcement activity?
PaulJ6
(New York)

Posts:319


09/08/2019 3:21 PM  
Posted By GenoS on 09/08/2019 2:53 PM
I see and hear all the time that individual homeowners can enforce the governing documents themselves as a private action even if the HOA itself does not. That's written in the Florida HOA (and condo) statute explicitly. Also, our CC&Rs spell it out explicitly, too.

What I haven't seen are accounts of where such enforcement has actually happened. Does anyone have any knowledge of such ownver vs. owner violation enforcement activity?




I don’t know about Florida HOAs specifically but in many states, an owner can send a demand to the HOA board, demanding that the board enforce rules. If the board does not, then the owner can file a lawsuit against the rule breaker. This is called a “derivative lawsuit”. It’s rare and if an owner pursues a derivative lawsuit, the HOA board will not like it. I’ve seen this done before.
KerryL1
(California)

Posts:6636


09/08/2019 3:42 PM  
When I was on our board, an owner went into mediation with another owner for noxious odors and nuisance behavior due to the lower floor owners' balcony smoking that bothered the residents in the floor above. About 8 years ago.

I don't recall the details, but the upper's action was to get the board to tell the lowers to smoke inside. The HOA attorney went back & forth between us (the board) the complainer's room and the smokers' room. They each spoke to the mediator. The upper also name u in and spoke with us for a few minutes. The mediator finally after about 3 hours told us via our GC to instruct the smokers to smoke in the unit or outside on the exterior of the building on the ground floor level. I believe their was a fine schedule involved. We complied and so did the smokers.

I don't remember who paid the mediator. I guess the HOA paid the attorney. I believe the procedure is at Davis-stirling.com. I believe it's a required first step that must be taken before a neighbor sues the HOA & the neighbor.. I'm not going to look it up.

If I'm off on some details, It appears that Richard won't correct me as he's left the building.
GenoS
(Florida)

Posts:3234


09/08/2019 10:25 PM  
Interesting. In Florida a dispute headed to court must first go through non-binding mediation when it's between an owner and the HOA. FS 720.311 requires that, "Disputes between an association and a parcel owner" must go through presuit mediation and if no agreement is reached then the dispute can be the subject of a lawsuit. FS 720 does not provide for presuit mediation proceedings when the dispute is between owners so I think proceding straight to a lawsuit without any ADR would be appropriate. But I'm not sure and would definitely consult with a licensed attorney before going down that road.

I still can't find any references to actual cases where the dispute was one owner vs another owner. I wonder how often that actually happens, where an owner files a covenant or rules enforcement action against a fellow owner who is alleged to have violated same. I'm beginning to think that even though such an action is available to owners, that those actions are far and few between (like never).
NpS
(Pennsylvania)

Posts:3762


09/09/2019 7:09 AM  
Posted By GenoS on 09/08/2019 10:25 PM
I still can't find any references to actual cases where the dispute was one owner vs another owner. I wonder how often that actually happens, where an owner files a covenant or rules enforcement action against a fellow owner who is alleged to have violated same. I'm beginning to think that even though such an action is available to owners, that those actions are far and few between (like never).


Agree that it would be very rare.

When we receive a complaint by owner A against owner B, we notify B that we received a complaint.
We don't tell B who complained.
We don't tell A if the BOD took any action against B.

We can have a long-standing complaint that doesn't get resolved. The complaining owner might think that the BOD hasn't taken any action, even though it has. The only way to find out would be to sue, and we've never had an incident where that happened.

Sikubali jukumu. Read all posts at your own risk.
NpS
(Pennsylvania)

Posts:3762


09/09/2019 7:14 AM  
Posted By KerryL1 on 09/08/2019 3:42 PM
The mediator finally after about 3 hours told us via our GC to instruct the smokers to smoke in the unit or outside on the exterior of the building on the ground floor level. I believe their was a fine schedule involved. We complied and so did the smokers.


It would have been Arbitration if you were instructed what to do.
It would have been Mediation if, based on all the discussions, a recommendation was made, and all parties accepted it.
The distinction is that in Arbitration the decision is imposed by a third party, but in Mediation the parties themselves come to an agreement (and form a contract).

Sikubali jukumu. Read all posts at your own risk.
JeffT2
(Iowa)

Posts:493


09/09/2019 1:45 PM  
There was a case in Iowa where one condo owner sued another, because a balcony had been built in violation of the documents (too large). The balcony was built six years before the lawsuit.

An appeals court found that a condo declaration should be interpreted in the nature of real estate covenants, which has a five year statute of limitations, and not under general contract law, which has a ten-year statute of limitations. So the plaintiff owner lost and the balcony stayed.

Business contracts and real estate covenants are different. On this forum, we sometimes hear the advice to get a contract lawyer not a real estate lawyer, but in this case the law for real estate won out. If an HOA lawyer was not available, I might hire an experienced real estate lawyer over a contract lawyer.
KerryL1
(California)

Posts:6636


09/09/2019 2:34 PM  
Thanks, NpS, showing the distinction. I can't honestly remember if the mediator "advised" us or directed us. I do not think, though we were in arbitration.

Btw, the board recently voted 5-1 for a rule change that permits smoking only in condo units-- no more on balconies,/patios/decks. It's been prohibited on our exterior common areas for years.

A director voted "no" as he "occasionally" smokes "socially." HA. I saw him a few days ago pacing like a maniac in his patio smoking. His arrogance is really insufferable. And, sad to say, he is an attorney.
NpS
(Pennsylvania)

Posts:3762


09/09/2019 3:10 PM  
Posted By JeffT2 on 09/09/2019 1:45 PM
Business contracts and real estate covenants are different. On this forum, we sometimes hear the advice to get a contract lawyer not a real estate lawyer, but in this case the law for real estate won out. If an HOA lawyer was not available, I might hire an experienced real estate lawyer over a contract lawyer.


Hi Jeff
If your post is in response to my statement about a mediation contract, let me clarify.
In mediation, the parties come to an agreement. That agreement is whatever the parties agree to. And when 2 parties agree to something - they form a contract. If later there's a dispute about the contract, it will usually be won or lost under contract law rather than RE law.

In your example, you referenced a judicial decision. That's different. The judge determined which laws applied. In mediation, there is no judge. It's up to the individuals to come to an agreement (contract) or not.


Sikubali jukumu. Read all posts at your own risk.
JeffT2
(Iowa)

Posts:493


09/09/2019 7:04 PM  
Posted By NpS on 09/09/2019 3:10 PM


Hi Jeff
If your post is in response to my statement about a mediation contract,...




My post was a general response to the main topic that just happened to be on the subject of contract versus Covenant.
GenoS
(Florida)

Posts:3234


09/10/2019 1:04 PM  
Thanks, JeffT2, that is interesting and just the kind of thing I was asking about.
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