Courtesy of The Miami's Community Newspapers
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
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
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