Q: I live in a condominium. Ours is part of a bigger development. Under the covenants of the bigger development, a master homeowners association was also created. When I asked the president of the master association to take action against a noisy tenant in our building, he said that the master association did not have any authority to take that action. How can that be?
A: The term “master association” is frequently used to describe a homeowners association under covenants encompassing an entire development. Because that term is loosely used, residents of the development often believe that the master association has authority to enforce all rules and regulations. That is often not the case.
Authority of each association and matters enforceable by each will be found by review of the governing documents and Florida statutes.
For a condominium, the association’s governing documents are generally the declaration of condominium, articles of incorporation and by-laws for the association and any rules adopted by the association. Statutory authority and in some cases mandates for condominiums are found in Chapter 718 of Florida Statutes, also known as the condominium act.
Homeowner association authority is usually created by restrictive covenants recorded by developer in connection with a development. The covenants usually apply equally to all properties within the development. As with a condominium association, a homeowner association is created by the developer and is a corporation. It is granted authority and tasked with responsibility under the restrictive covenants, its articles of incorporation, by-laws and rules. Additional authority and mandates may be found in Chapter 720 of Florida Statutes which is generally referred to as the Homeowner Association Act.
Authorization and restrictions in the condominium act and the homeowner association act are not identical. For example, a homeowner association can suspend an owner’s right to use common areas and facilities such as the pool or tennis court if the owner does not pay assessments, if the governing documents so provide. A condominium association cannot take similar action against the unit owner. This makes it important to know which statute applies to a particular association.
Deciding which statute applies can be confusing. If a development is composed entirely of condominiums, all of the associations in the development are condominium associations by statute. That includes what you refer to as the master association. The idea here is that the same rules should apply to the master association as apply to each condominium association within the development, where all of the property within the development is set up as condominiums. This is not the case in mixed developments, where there are villa homes, duplexes and single family residences, even where they are subject to restrictive covenants creating separate homeowner associations to govern different portions of the development.
Associations established to deal with matters throughout a development frequently lack authority in many areas, which are delegated to a condominium association or other neighborhood association within the development. These areas can include rules and approval requirements for sale or lease, authority to take action to stop offensive or bothersome activity and even architectural control. In many cases, the “master association” is established to maintain the roads, lights, club house, tennis courts, community pool and surface water management. These associations are given authority under the restrictive covenants recorded by the developer to carry out these functions.
Virtually all homeowner associations are also given authority by the governing documents to assess the owners or other associations within the development for its costs of operation. Usually, the association has authority to file liens and foreclose in a manner similar to condominium associations. Florida’s legislature has been working toward making the lien and assessment collection for condominiums and homeowner associations virtually identical over the past few years.
The various statutes applicable to these associations are controlling to the extent that they set forth procedures to be followed. In substantive areas, the statutes only apply to associations created after the effective date of the statutes.
Does it sound confusing? It can be. In your case, the “master association” may or may not have authority to take action against tenants. First, you have to read the governing documents of the master association, which would be the covenants and organizational documents of the association. The statutes won’t be much help in that regard.
Sometimes, master associations believe they are masters and pursue all kinds of enforcement action that their documents do not allow. In those cases, defense is relatively easy and can result in an award of attorney fees to the homeowner. It is important that each association carefully review its governing documents and applicable statutes before proceeding with legal action.
This is one area of law where the interplay between developer created rules and regulations and those adopted by the State can conflict. It is also an area where many are confused, due to use of terms such as “master association.”
To determine if your association has authority to take the action you request will require a careful reading of the governing documents. If you find the association has the authority, you must then determine if failure to act violates the association’s duty to those in the development. Then, you must determine if you want to take further legal action, which might prove costly.
Because of the confusion and complexity in this area of law, I urge you to consult with an experienced attorney. A proper review of your facts and circumstances along with a consideration of what it might cost to pursue further action should prove invaluable in making your decision about further proceeding.
William G. Morris is an attorney with offices at 247 North Collier Boulevard. His practice covers a broad range of subjects, including civil litigation, real estate, business and corporate law, estate planning and probate, domestic relations and contracts. He writes this column periodically with respect to legal matters that frequently affect non-lawyers. The information contained in this column is not intended as legal advice and, of necessity, is generalized. For questions about specific circumstances, the reader should consult a qualified attorney.
Questions for this column can be sent to William G. Morris, e-mail: email@example.com or by fax, (239) 642-0722.