Your HOA Is Not Doing Anything “Illegal”
The sunshine of Florida beckons, but nestled amongst the palm trees and sparkling water lies a different kind of code – the HOA and Condominium Acts. These laws and the association's governing documents outline the community's rules and restrictions, ensuring a certain level of uniformity and shared responsibility. But what happens if someone breaks one of these laws or rules? Don't reach for the panic button just yet – while there will be consequences, understanding the terminology is critical. Here's why calling a violation "illegal" might not be the most accurate term.
The association's governing documents are not laws but contracts. By purchasing a property within the community, an owner essentially agrees to abide by these established rules. Just like any contract, there are expectations on both sides. The association maintains the common areas, enforces the rules, and fosters a sense of community. At the same time, the residents agree to uphold their end of the bargain – keeping their property well-maintained, adhering to parking regulations, not creating nuisances, and otherwise obeying any enforceable restrictions. An owner's failure to abide by the restrictions contained in the governing documents is, therefore, more like a breach of contract than an "illegal" act (unless, of course, the violation is also a crime under state or federal law - some violations can cross the line into illegality under certain circumstances, but those are uncommon and not the subject of this discussion).
The power to enforce these community guidelines comes from Florida Statutes. HOAs and condo associations have the legal authority to ensure residents comply with the acts. This enforcement can take various forms, ranging from a friendly reminder to fines, liens, or even legal action in more serious cases. However, it's important to remember that these consequences stem from the contractual agreement, not from breaking a criminal law. So when an owner violates the provisions of the HOA Act, Condo Act, or governing documents, they can face civil, rather than criminal, penalties. Accordingly, such violations are not "illegal" in the technical sense of the term.
There are some minor exceptions, however. For example, it is illegal for a director to willfully and repeatedly interfere with an owner's right to inspect and copy official records. A director could be charged with a second-degree misdemeanor for such actions. Other actions, such as embezzlement, fraud, theft, etc., are criminal and illegal. But, by and large, when we hear owners talking about a director's actions as "illegal," the owner usually means that the director has violated or breached some restriction or non-criminal portion of Chapter 718 or 720. For example, refusing to let owners speak at a meeting (a violation of both the HOA and Condo Acts) simply does not result in that type of liability and is, therefore, not illegal. The Association and/or the guilty director may face civil penalties, but there is no risk of incarceration.
So, what's the right word to use when someone has strayed from the community guidelines? "Violation" is the most accurate term. It simply means they haven't followed a rule outlined in the governing documents. "Breach" also works, highlighting the broken agreement between the members and the association. Bad acts by directors can occasionally be criminal, but by and large, they are simply "inappropriate" or maybe even just "actionable."
Why does the terminology matter? Using the right words keeps things clear. It avoids the misconception that a minor HOA violation, like an unkempt lawn or becoming a nuisance to one's neighbors, could land someone in jail. Managed community violations are civil matters, not criminal ones.
Imagine a notice of violation has been delivered, and the sunshine suddenly feels less warm. The first step is to take a deep breath and understand the specific rule that was violated/breached. Consult the association documents, the very contract agreed to, and identify the section outlining the violated rule. This will help address the situation effectively. For HOAs, the violation notice should identify the specific restriction or rule at issue. Also, an owner should not be afraid to seek clarification from the association. Often, a simple conversation can clear up misunderstandings or offer simple solutions to rectify the violation. If things seem more complex, an owner may want to consult a lawyer specializing in HOA or condominium law. Attorneys familiar with managed community law can provide expert guidance specific to the situation and help navigate the legalities involved.
When a board or individual director does something that potentially violates a member's rights as an owner, the member may want to consult with an attorney, especially before decrying the bad act as illegal. If a director has truly violated one of the Acts or the governing documents, the injured party may be entitled to some sort of relief – though, by and large, the punishment for a board's or director's violation is usually an order compelling them to fix it (if possible) or to get it right in the future. Finally, it is key to understand that Robert's Rules of Order is not a law, even if adopted by the Articles of Incorporation or Bylaws. Failure of a board (especially a small board for a small community) to strictly observe such parliamentary rules is rarely actionable. Even when there is an actionable violation, the remedy is usually for the Board/director to redo what they did wrong, or, again, they may just be ordered to get it right in the future. Explaining the limited application of Robert's is a much longer conversation. Still, the point is that a violation of parliamentary procedure is not necessarily an actionable issue and is rarely "illegal.".
Owners and directors can confidently navigate potential issues by understanding the nature of HOA/Condo Acts and the consequences of breaching them. We can ensure a smooth and harmonious experience within an HOA or condo by clearly understanding the community guidelines and the relevant terminology. When a conflict arises between the association and the members, keeping the terminology straight can help keep the situation less confrontational, and by omitting the word "illegal" or other such potentially inflammatory language, the risk of frightening one of the parties is significantly reduced - leaving the door open for a more cooperative and reasonable solution.
