Anyone in association management or volunteers on the board fully understands what it means to deal with “that owner.” They are generally the critics on the sideline, someone who finds fault in anything you do – and works hard to make your life miserable.
Too often in condominium associations, the response is to take a closer look for violations, be stricter on late payments and take small, retaliatory actions against the owner.
Take the case of the Applegate Condos in South Florida, where the unit owners and the board were involved in a nasty lawsuit filled with allegations of retaliation.
There, unit owners repeatedly filed complaints that issues – like cracks in the ceiling and holes in the walls – were not being taken care of. The lawsuit says the association started to tow cars owned by the main complainers, for minor things like having a tire on the white line.
While we hope our clients never get to this point, as of July 1, this type of retaliation by condo associations is clearly illegal with a new law passed this year overseeing condominium associations, HB 1021.
The attorneys at The Orlando Law Group represent more than 100 communities in Central Florida. If you live in Orlando, Winter Garden, Altamonte Springs, Kissimmee or anywhere throughout Central Florida, The Orlando Law Group is ready to help you.
What can a condominium owner do without retaliation?
To be clear, a unit owner must act in good faith with any issues or complaints it has with the condominium association for it to claim the association engaged in retaliatory actions against an owner.
Specifically, the new law says the owner can not complain “for any improper purposes, such as to harass or to cause unnecessary delay or for frivolous purpose or needless increase in the cost of litigation.”
We’ll get into the issue of interpreting that wording later, but for now, here are all the actions a unit owner can take in good faith and be protected in the new law:
- “Complain to a governmental agency charged with responsibility for enforcement of a building, housing, or health code of a suspected violation applicable to the condominium;
- “Organize, encourage or participate in a unit owners’ organization;
- “Submit information or file a complaint alleging criminal violations or violations of this chapter or the rules of the division;
- “Exercise any rights under this chapter;
- “Complain to the association or any of the association’s representatives for the failure to comply with this chapter or chapter 617; or
- “Make public statements critical of the operation or management of the association.”
Of course, the key here is that any action taken through those avenues is taken in “good faith.” As a unit owner, tt is important to document any actions and work with an attorney to ensure any complaints meet the intent of the law.
Can the association strike back?
If the unit owner acts in good faith in taking any of the actions above, the association must be very careful every step along the way, otherwise, there can be ramifications later.
The new law specifically outlines all of the actions that are prohibited after a complaint is filed. They are:
- “Fine the owner,
- “Discriminatorily increase a unit owner’s assessments,
- “Discriminatorily decrease services to a unit owner, or
- “Bring or threaten to bring an action for possession or other civil action, including a defamation, libel, slander, or tortious interference action.”
Here is where the issue comes into play. Let’s say the unit owner is significantly behind on dues, but the unit owner claims the association is not taking care of a rodent problem in the condominium.
With evidence of rats, the unit owner files a complaint with the local health department accusing the condominium association of neglect. Now, any action the association takes could be construed as retaliation and could get any enforcement action thrown out by a judge.
That is why it is important to be meticulous in the actions of the association when dealing with unit owners.
The statute leaves a lot of interpretation of actions
The new law certainly provides condominium owners new powers and abilities to push back against its association.
But what constitutes good faith? And what says that a lawsuit was in retaliation for an action by the condominium owner?
Frankly, much of that will need to be interpreted by a court of law.
Let’s play out another scenario using the state statute.
The association struggles to find an affordable contractor to repair a structural flaw in the pool house. It is a dangerous situation and the association had to close the pool house for the safety of its residents.
A unit owner decides to make more than a dozen statements on social media, saying how bad the association board members are at their jobs, accusing them of mismanaging money and calling for them to resign because the pool house has been closed longer than the unit owner deems was necessary.
Turns out, that the unit owner has not paid the special assessment to pay for the pool repairs. Following procedures, the association places a lien on the condominium association, to which the unit owner claims retaliation in a lawsuit.
Was it?
The association could certainly say that more than a dozen social media posts were not in good faith, but there is no statutory definition of where the line between good faith and harassment comes with public statements.
The unit owner could claim the lien was only because they complained on social media, but was it if the same standards were applied to this unit owner as everyone else?
It is confusing and will be up to the courts to try and interpret the intent of both the unit owner and the association
What to do now?
This new law makes it even more important for associations to be very methodical in every action they take to enforce their covenants and collect fees. There cannot be any emotion or deviation from procedures, or the association risks losing in court.
Today, every condominium association should be looking at its procedures for enforcement and review to make sure those procedures have been followed the same for every unit owner.
Then, it is usually best to allow the association’s lawyers to handle any further action if the unit owner takes any of the steps outlined in the new law. Once that happens, if the association is not meticulous in its actions, it could be creating legal exposure.
The attorneys at The Orlando Law Group can help association board members and managers in Orlando, Waterford Lakes, Altamonte Springs, Winter Garden, Lake Nona, St. Cloud, Kissimmee, and throughout Central Florida.
If you have questions about anything discussed in this article or other legal matters, give our office a call at 407-512-4394 or fill out our online contact form to schedule a consultation to discuss your case. We have an office conveniently located at 12301 Lake Underhill Rd, Suite 213, Orlando, FL 32828, as well as offices in Seminole, Osceola and West Orange counties to assist you.
The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.
Last Updated on July 9, 2024 by The Orlando Law Group