HOA Harassment: Glossary
HOA harassment in Florida involves repeated unjustified interference and intrusion in the lives of homeowners that can create an abusive environment for those living in a community created by a homeowner association (HOA). Charitably, this type of behavior may simply stem out of ignorance or negligence. But, what the harassed families have endured is frequently a result of a past power struggle or a lack of regard for the current Board of Directors’ lack of training and understanding of what their duties really are and how to properly perform them. All too often, the cause of the HOA harassment that these families endure arises from the imposing nature of the HOA bylaws which may have been adopted without informing the homeowner of what some of the more stringent requirements are as well as an HOA’s right to inspect a home without advanced written permission. The harassment can come in many forms and modes of communication . Some of the more common methods used by HOAs include letters and emails that seek to unduly harm the homeowner. Yet, other forms of verbal harassment (i.e., personal attack mailers, photos of the family home and members on HOA boards’ Facebook pages, etc.), legal action taken by recording false claims against the land, and sometimes even stalking by HOA "dissenters" or turncoats in good standings, and HOA board members themselves may perpetuate continuing harassment. When the harassment reaches the stage where it becomes unbearable, even with the "protection" of the formal charges which are supposed to be addressed and disclosed well in advance to all homeowners at regular meetings and in a timely fashion, the protection of the law becomes necessary. This knowledge and understanding is crucial to Florida residents that choose to have an HOA take care of their neighborhoods.
Florida Harassment Statutes
The Florida statutes that address harassment by homeowners’ associations are still being developed. Recently enacted § 720.305(2)(b) and Condominium Act § 718.303(3) require that an association send a warning letter to the member about the behavior that the board finds to be harassment and cite any authority that the behavior violates. The provision also allows the association to levy a fine that is levied and enforced in the same manner as a delinquent assessment. The fine must be reasonable and does not become a lien against the unit or parcel.
The statutes require a procedure for notice to the member of the behavior that the board finds objectionable. If the behavior continues after the warning, the association can impose the fine.
Although the provisions have just started, the language in the statutes is very vague and will need to find its way through our courts to better define the types of conduct that will be subject to the statute. We are awaiting case law to help us understand what this new law will mean to the associations we serve.
Harassment and the Rights of Homeowners
Homeowners facing harassment from their HOA have specific rights guaranteed under Florida law. For example, Florida Statute 720.302 affords homeowners the right to a fair and impartial board of directors. Unfortunately, some HOAs usurp that right by singlehandedly adding stipulations to the CC&Rs unilaterally. When that is coupled with code language interpreted differently from one year to the next, it can lead to harassment.
For example, in Whitfield v. Island Club HOA (2013), the Association’s president and board harassed members of a homeowners’ group. The board filed more than 90 lien documents against the homeowners for non-existent violations as a tactic to intimidate them into dropping the lawsuit. In 2016, Florida Statutes 720.303(1) went into effect and restricts HOA board members from abusing discussion periods at board meetings. Homeowners have the right to address the association during these meetings.
However, associations are allowed to deny or limit speaking time to homeowners in "special assessments or proposed amendments to the declaration." A homeowner should ask for these speaking limitations to be documented in the association’s minutes. In addition, the homeowner may request to respond to later agenda item during "other new business" time.
Florida homeowners facing harassment have legal recourse. The first step is to submit requests for all documents associated with the harassment in writing. Then, they should make sure they have all relevant records before initiating a lawsuit. Conciliation, mediation, and the filing of a complaint with the Florida Department of Business and Professional Regulation are all ways to get ahead of drawn out litigations cases. However, if legal recourse is unavoidable, they can also seek permission from the court to recover fees and costs they have incurred.
Authorized Actions for HOA Harassment
When a homeowner feels they are being harassed by an HOA or its agents, there are a variety of legal actions available. We recommend starting with sending the association or its manager a letter outlining why the harassment is occurring and objecting to the offending practice. This can result in the homeowners’ position becoming better known and the possibility of the harassment stopping entirely. Another option is filing a complaint with the Florida Department of Business and Professional Regulation (DBPR). While DBPR does not adjudicate disputes, it may be possible to get an issue resolved with just a complaint . If the HOA harassment goes on for years, filing for arbitration may be an appropriate step. Florida law requires any disputes between homeowners and HOAs to be handled through binding arbitration rather than through a lawsuit. Arbitration is a less costly and quicker way to obtain a resolution than going to circuit court. At the same time, some homeowners think the arbitration process is not fair to the homeowner due to having to pay for the arbitration filing fees up front. There are also a variety of court actions that may be appropriate in any specific case. If you feel you are the target of HOA harassment, please consult with an attorney as soon as possible.
Avoiding HOA Harassment
The best way to deal with HOA harassment is to prevent it in the first place. Homeowners and HOAs alike can mitigate the potential for harassment by maintaining good, open dialogue.
Meet Regularly About HOA Business HOAs should make sure the entire community is getting regular updates on HOA business and operations. These meetings can help keep all owners informed about rules as well as dispelling any rumors that could perpetuate harassment. The Florida Homeowners’ Association Act requires that associations meet at the minimum once annually and provides specific requirements and restrictions regarding meeting and elections. See Fla. Stat. § 720.301-.312.
Communicate Rules Clearly Many harassment disputes arise over rules a homeowner perceives to be unfair or not properly communicated. To prevent this, HOAs should make rules clear about who can attend meetings, how disputes are handled, and the expectations the HOA has for homeowners.
Listen to Homeowner Concerns HOAs should ensure that homeowners have an opportunity to express concerns at association meetings. Likewise, homeowners should voice concerns promptly to the association — whether it’s a legitimate concern about a neighbor or a problem with the HOA — this serves to protect the interest of other neighbors in the development.
Additionally, the HOA should encourage homeowners to communicate problems with other owners in writing, which can help to clarify the issue and provide documentation to the HOA if the problem escalates to harassment.
Be Careful Not to Engage in Acts of Harassment Themselves While your HOA may be in the right from a legal standpoint, that does not mean that you aren’t contributing to the ongoing harassment situation. Any name calling, threatening behavior or instigation of public disorder can constitute harassment and perhaps even bullying.
Coordinate Meetings and Mediation Sometimes HOA harassment can be resolved by getting all parties together for a meeting with a mediator or during another mediation event. Florida law states that if an association fails to take action on a written request to resolve a dispute under the Florida Homeowners’ Association Act within 30 days, the homeowner may notify the division to mediate the dispute. See Fla. Stat. § 720.311(a).
While working on resolving a HOA harassment dispute, both the association and the homeowners must abide by the "clean hands doctrine," which provides that those seeking relief from the courts must also have clean hands themselves. In other words, they must also not have contributed to the dispute in any way.
HOA harassment will not go away on its own. Florida law provides for specific procedures to resolve disputes between associations and homeowners. Being proactive can go a long way to preventing problems, costly litigation, or even criminal proceedings.
Examples and Cases
A case study that illustrates the nuances of HOA harassment laws in Florida can be seen in the case of a Naples, Florida community whose board engaged in what the Florida Bar deemed "behavior that runs the risk of perpetrating a form of blackmail." The Naples HOA had cleared five acres of trees to but had not complied with the HOA’s governing documents with regard to clearing a tree buffer in front of the community. As a result, they were told by the Florida Department of Environmental Protection to replant the trees to preserve the buffer. The Naples HOA hired a contractor without seeking competitive bids. When the unauthorized contractor began planting more than 60 highly invasive melaleuca trees in the wrong location in the buffer and over-seeded the lot with sod, the residents grew concerned. Their concerns were returned with "law-flavored" letters from the Naples HOA’s attorney to their "uncooperative" residents.
Rather than stop and seek out a licensed professional, as was mandated in the board’s bylaws and the community’s guidelines, the board directed the contractors to continue with the extensive removal of the trees. They did so without any concern about the flora or fauna that may have been living there. The board members gave no thought to the stalking tort law suits that would follow them for years to come.
The story that follows is not a common outcome for quintessential Florida HOA harassment scenarios.
In the past years, many HOAs have received lawsuits on behalf of residents whose rights were being violated by their boards.
During those years of litigation – which for some communities has ended in settlements or court rulings highlighting an HOA’s wrongful actions or an illegal board designation – many changes took place within those communities, while others continued their practices unfazed .
A Sarasota, Florida HOA decided to remove and kill all of the community’s mangroves – to the tune of thousands of dollars. The HOA couldn’t offer a reliable reason why; they said, "They are an eyesore." To make matters worse, there was evidence of the "cannot tell who gave the order" syndrome written all over the HOA board members’ communications to others like:
"Steve is sick and no one should be talking to him unless you call and get an ok. If someone does talk to him without checking with me the person doing so will be removed from the board."
Furthermore, management sent an email to residents, saying:
"Someone in the community called and made an anonymous complaint that the mangroves needed to be trimmed."
Along the way, we learned that the HOA president planned to hire a private investigator to find out who was making the calls, obviously believing this was the first step to bring those "criminals" to justice. The community, with the help of the American Civil Liberties Union (ACLU), filed suit against the HOA. In contrast to the HOA’s efforts to have the mangroves removed, the ACLU successfully sought to have the money returned to the community’s funds.
Even here, communities have rallied around their HOAs, spending the money and the will of the homeowners to sue the ACLU and its attorneys.
It was not until 20 homeowners banded together as a "class action" that the Sarasota, Florida HOA was forced to change their ways by paying for all attorneys’ fees for the community’s litigants and accepting the other results that were ordered by the court – they had to give the mangroves back.