Florida homeowner rights require better legislation

Article Courtesy of The Miami's Community Newspapers

By Maria E. Huston

Published March 26, 2017


The relationship between a homeowner and their community association has been increasingly defined in litigation in recent years, due to the rapid growth of common-interest communities and issues.

Community and homeowner associations largely govern themselves, with little oversight from the state and no standardized procedures or best practices. The result is a patchwork of rules and regulations, and occasionally great disparities between how developments operate and run their associations.

It is common today to find one body of law in a state that applies to unit owner associations for condominiums in that state and an entire different and less developed body of law applicable to unit owner associations, for either cooperatives or HOA communities in the same state, when the unit owners in all three forms of ownership experience identical issues.

Prevailing law in most states views the relationship between a community association and a homeowner as being analogous to the relationship between landlord and tenant.

That may be changing. Legislation and amendments continues to pass in different states to promote uniformity when it comes to the monitoring and registration of homeowners associations under the Uniform Common Interest Ownership Act or UCIOA.

The primary purpose of the proposed amendments was to address a growing demand in the states for a legislative solution for growing tensions between the elected directors of unit owners’ associations and dissident individual unit owners within those associations. In keeping with the aims of the 1982 and 1994 versions of the act, the new amendments also reflect a comprehensive review of states’ experience with UCIOA and its predecessor acts over the last 30 years.

The 2008 amendments also expand UCIOA’s treatment of association bylaws, rulemaking, operation and governance and seek to address critical aspects of association governance with particular focus on the relationship between the association and its individual members. There are a significant number of other amendments to clarify and modernize the operation, and governance of common interest associations.

Some states have enacted laws in several areas where homeowners’ right have been recognized by various appellate courts from across the country i.e.:

  • Breach of covenant by the community association

  • Breach of fiduciary duty owed to homeowners by directors

  • Negligence of the community association or failure to perform duties in a reasonably safe and prudent manner

  • Breach of statutory duty

  • Failure to adequately guard against foreseeable crimes.

In determining the element of foreseeability, courts have held the foreseeability of criminal active was present where there have been repeated criminal incidents within the community itself.

While the outcomes vary from jurisdiction to jurisdiction, there continues to be an expansion of owner rights and community association liability as community associations are increasingly being recognized as quasi-governmental entities with powers greater than a mere landlord.

Since the exact nature of the legal relationship between the homeowner and their community association is in process of being more clearly defined, homeowners in Florida must keep pressing their legislators contacting the Florida House of Representatives Leadership Office to adopt all the amended UCIOA. In any event, educated homeowners with expanding legal rights will help ensure the smooth operation of the community by the community association.