Is Self-Help Required?
While one of the primary functions of an association is to maintain and enforce the owners’ obligations imposed upon them by the association’s governing documents, the association itself is usually not required to the perform the work necessary to fulfill the owners’ obligations. In this regard, Sections 718.303, 719.303, and 720.305, Florida Statutes, contain language that specifically authorize associations to bring actions at law or in equity, or both, in the event an owner fails to comply with the governing documents of the association. Additionally, most governing documents contain similar language authorizing the association to enforce the governing documents though actions in law or equity.
Under these authorities, most associations prefer to enforce their governing documents by filing a lawsuit for declaratory and injunctive relief against the violating owner. In general terms, a declaratory relief is a request for a binding judgment from a court defining the legal relationship between parties and their rights in a matter before the court (e.g., asking the court to determine if the governing documents require the owner to do or not do something the owner is or is not doing), and injunctive relief is a request for a court order directing a person or entity to do or not do something requested by the party seeking the injunction (e.g., asking the court to tell the owner to do or not do what the owner is or is not doing). Both of these causes of action invoke the court’s equitable powers since the association is requesting the court order the owner to act or refrain from acting.
However, many associations’ governing documents also contain a “self-help” provision. A “self-help” provision authorizes the association to elect to cure a violation existing on a property, and charge the owner of the property the cost incurred by the association in curing the violation. In some cases, if permitted by the governing documents, the charge may be levied as an assessment against the owner’s property and collected in the same manner as the regular assessments the association levies against the property.
Despite containing a self-help provision, most associations are not interested in curing a violation on an owner’s property. There are numerous reasons why the association might prefer to commence legal action instead of curing a violation for the owner including the expense of the work needed to cure the violations, the risks associated with entering someone else’s property without the owner’s express permission, and the liabilities associated with undertaking sometimes significant maintenance, repairs and replacements on someone else’s property. Additionally, in principle, the owner should be made to comply with the governing documents since all other owners in the community are likely upholding their obligations. However, a line of cases emerging from Florida’s Second District Court of Appeal may require an association to rethink how it is enforcing against violations of its governing documents.
In Alorda v. Sutton Place Homeowners Association, Inc., 82 So. 3d 1077 (Fla. 2d DCA 2012), the owners of the properties in the association are obligated to provide the association with proof of insurance coverage under the declaration. The provision at issue stated “[t]he owner shall furnish proof of such insurance to the Association at the time of purchase of a lot and shall furnish proof of renewal of such insurance on each anniversary date. If the owner fails to provide such insurance the Association may obtain such insurance and shall assess the owner for the cost of the same in accordance with the provisions of this Declaration.” This provision provided the association with the option of exercising self-help by purchasing insurance on behalf of the Alordas for their property and assessing them the costs of such insurance. However, after attempting to garner the Alordas’ compliance with the declaration, the Alordas did not comply, and the association elected to proceed with a lawsuit to compel the Alordas to purchase the required insurance for their property.
In response to the lawsuit filed against them, the Alordas filed a motion to dismiss the lawsuit. The motion argued that even though they violated the declaration, the equitable remedy of an injunction (e.g., an order compelling them to purchase the insurance required under the declaration) is not available because the association had an adequate remedy at law in the declaration. The argument is based on the legal concept that, if a claimant has a remedy at law (e.g., the ability to purchase for and assess the cost of insurance against the property), then the claimant lacks the legal basis to pursue a remedy in equity (e.g., an action for declaratory and injunctive relief).
Based on existing case law, the court determined the association would only be entitled to an injunction if it could show a clear right had been violated, irreparable harm has been threatened, and there is a lack of an adequate remedy at law. The court ruled the association had an adequate remedy at law, because the provision on which it was relying to enforce against the Alordas permitted the association to purchase the insurance for the Alordas, and that option constituted an adequate remedy at law. Therefore, the court dismissed the association’s action against the Alordas.
More recently, in Mauriello v. The Property Owners Association of Lake Parker Estates, Inc., 337 So. 3d 484 (Fla. 2d DCA 2022), the Mauriellos failed to maintain their lawn and landscaping in the condition required by the declaration, and the association filed a lawsuit seeking a mandatory injunction ordering the Mauriellos to maintain the lawn and landscaping. The language at issue in Mauriello was similar to most self-help provisions and gave the association to the option of performing the work required on the property, then assessing the cost of work against the owner’s property. The issue before Florida’s Second District Court of Appeal was who was the prevailing party in the lawsuit, and who was entitled to reimbursement of attorneys fees and costs after the dismissal of the action.
The association argued it was entitled to prevailing party attorneys’ fees because the Mauriellos voluntary complied with their obligations under the declaration after the association was forced to commence a lawsuit. The Mauriellos relied on Alorda and argued that they were entitled to prevailing party attorneys’ fees since the association’s complaint never stated a cause of action. The Mauriellos argued that the lawsuit should have been dismissed at the outset because the association sought an injunction when the association could have simply engaged in self-help to cure the violation, which was the association’s adequate remedy at law. The court ruled in favor of the owners, and the association was not entitled to its prevailing party attorneys fees.
Both Alorda and Mauriello decisions were issued by Florida’s Second District Court of Appeal. Appellate court decisions from other jurisdictions in Florida have permitted associations to pursue claims for declaratory and injunctive relief against violations of the governing documents even if self-help provisions exist in the governing documents. While Alorda and Mauriello are not binding precedent outside of Florida’s Second District, there is concern the other District Courts of Appeal could follow the precedent set by Alorda and Mauriello.
If your association’s governing documents contain a “self-help” provision, your association should work with its legal counsel to develop a strategy regarding how to address violations in the community and whether to engage in any “self-help” to avoid the potential pitfalls presented by Alorda and Mauriello.