Living in a community governed by a Homeowners Association (HOA) offers many benefits, including maintained common areas and community amenities. However, conflicts can arise when homeowners feel targeted by their association’s actions. In Florida, homeowners sometimes question whether certain actions by their HOA constitute harassment and whether legal recourse is available.
At Perez Mayoral, P.A., we regularly assist Florida homeowners in navigating complex relationships with their associations. This article examines when HOA actions may cross the line into harassment and your legal options under Florida law, with special attention to the concept of selective enforcement.
What Constitutes HOA Harassment In Florida?
Florida law does not specifically define “HOA harassment.” However, certain association behaviors may be deemed improper, unreasonable, or potentially harassing. Understanding these behaviors is crucial for determining whether you have legal grounds for action.
Common Examples Of Potential HOA Harassment
Actions that might constitute harassment by an association include:
- Excessive Fining: Imposing numerous or unreasonable fines for minor infractions or without proper notice and opportunity for hearing as required by Florida Statute § 720.305(2).
- Arbitrary Rule Enforcement: Enforcing rules inconsistently or selectively targeting specific homeowners while ignoring similar violations by others.
- Intimidation Tactics: Using threatening language, excessive communications, or intimidating behavior toward a homeowner.
- Unreasonable Restrictions: Implementing or enforcing rules that unreasonably restrict homeowners’ rights or enjoyment of their property.
- Retaliatory Actions: Taking adverse actions against homeowners who exercise their legal rights, such as requesting inspection of association records or questioning board decisions.
- Abuse of Power: HOA board members using their position to pursue personal vendettas against certain homeowners.
- Invasion of Privacy: Conducting excessive or intrusive property inspections or surveillance beyond what is reasonably necessary for covenant enforcement.
Legal Standards For Proving Harassment
For HOA conduct to rise to the level of actionable harassment, it generally must be:
- Pervasive or Severe: Isolated incidents or minor annoyances typically do not constitute harassment. The conduct usually must be repeated or particularly egregious.
- Targeted: The actions should demonstrate a pattern of behavior directed specifically at you rather than general enforcement affecting all homeowners equally.
- Improper Purpose: Courts often look for evidence that the HOA’s actions serve no legitimate association purpose and instead appear motivated by animosity or discrimination.
Selective Enforcement: A Common Form Of HOA Harassment
Selective enforcement occurs when an HOA enforces rules against some homeowners but not others in similar situations. This practice is one of the most common allegations in HOA harassment claims and is specifically addressed in Florida law.
Legal Framework For Selective Enforcement
Florida courts have established that HOAs must enforce covenants uniformly. In the landmark case of White Egret Condominium, Inc. v. Franklin, 379 So. 2d 346 (Fla. 1979), the Florida Supreme Court held that restrictions must be “enforced uniformly or not at all.”
Developer Actions Vs. Association Enforcement
A particularly complex area of selective enforcement involves the transition from developer control to homeowner control of an association. Florida courts have established important precedents in this area:
In Ladner v. Plaza Del Prado Condominium Ass’n, Inc., 423 So. 2d 927 (Fla. 3d DCA 1982), the court addressed a situation where a developer had permitted certain unit owners to alter terrace railings in violation of architectural uniformity provisions. When homeowners later took control of the association and began enforcing these provisions, the court held that consistent, prospective enforcement by the new homeowner-controlled association did not constitute selective enforcement—even when the developer had previously been lax in enforcement.
This principle was reinforced in Constellation Condominium Assn. v. Harrington, 467 So. 2d 378 (Fla. 2d DCA 1985), where the court explicitly stated that “prior actions of a developer cannot be used against the association in an attempt to establish selective and arbitrary conduct by the association.”
Anti-Waiver Clauses And Their Impact
Many HOA and condominium declarations contain “anti-waiver” clauses that specifically address selective enforcement concerns. As seen in Emerald Estates Community Association v. Gorodetzer, 819 So. 2d 190 (Fla. 4th DCA 2002), these clauses typically state that the association’s failure to enforce any restriction will not be deemed a waiver of the right to enforce it in the future.
Florida courts have given these anti-waiver provisions “a strong presumption of validity,” further strengthening an association’s ability to begin enforcing previously ignored restrictions—provided such enforcement is applied uniformly going forward.
Elements Of A Selective Enforcement Defense
To establish selective enforcement under Florida law, you generally need to demonstrate:
- Similar Violations: Other homeowners have committed substantially similar violations of the same covenant or rule.
- Association Knowledge: The association knew about these similar violations.
- Lack of Enforcement: The association chose not to enforce the rule against these other homeowners.
- Current Enforcement: The association is now attempting to enforce the rule against you.
Documentation Requirements
If you believe you’re experiencing selective enforcement, thorough documentation is essential. This should include:
- Photographs of similar violations by other homeowners
- Dates and times of observed violations
- Records of communications with the HOA about the issue
- Evidence showing the HOA was aware of other violations
- Any written explanations from the HOA regarding its enforcement decisions
Legal Options for Addressing HOA Harassment in Florida
If you believe your HOA is engaging in harassment or selective enforcement, several legal remedies are available under Florida law.
Pre-Litigation Dispute Resolution
Before filing a lawsuit, Florida law requires homeowners to attempt alternative dispute resolution:
1. Written Demand for Pre-Suit Mediation
Under Florida Statute § 720.311, most disputes with HOAs require mandatory pre-suit mediation. This process involves:
- Sending a formal written demand for mediation by certified mail
- Specifying the nature of the dispute and requested resolution
- Proposing several certified mediators
- Allowing the association 20 days to respond
2. Internal Dispute Resolution
Many associations have internal dispute resolution procedures outlined in their governing documents. Utilizing these processes demonstrates good faith and may be required before pursuing external remedies.
Filing a Complaint with State Regulators
While HOAs in Florida do not have a dedicated regulatory agency like condominium associations do, certain complaints may be directed to:
- The Florida Department of Business and Professional Regulation (for issues involving licensed property managers)
- Local code enforcement (for safety or building code issues)
Legal Actions Against HOAs For Harassment
If pre-litigation efforts fail to resolve the issue, several causes of action may be available:
1. Breach of Fiduciary Duty
HOA board members owe a fiduciary duty to act in the best interest of all homeowners. Harassment motivated by personal vendettas or discrimination may constitute a breach of this duty. Under Florida Statute § 720.303(1), directors must discharge their duties in good faith and in the best interest of the association.
2. Declaratory and Injunctive Relief
You may seek a court order declaring your rights under the governing documents and enjoining the HOA from continuing harassing conduct. This remedy is particularly effective for stopping ongoing harassment.
3. Covenant of Good Faith and Fair Dealing
Florida courts recognize an implied covenant of good faith and fair dealing in contracts, including HOA governing documents. Harassment may violate this covenant, allowing for claims of contractual breach.
4. Fair Housing Act Violations
If the harassment is based on a protected characteristic (race, color, religion, national origin, sex, disability, or familial status), it may violate the Fair Housing Act, opening the door to both state and federal claims.
5. Defense Against HOA Enforcement Actions
If the HOA files an enforcement action against you, selective enforcement can be raised as an affirmative defense, potentially preventing the HOA from enforcing the rule.
Practical Considerations Before Suing Your HOA
Before pursuing litigation, consider these important factors:
1. Cost-Benefit Analysis
Litigation against an HOA can be costly and time-consuming. Evaluate whether the harassment is severe enough to justify the expense and effort of a lawsuit.
2. Community Relationships
Legal action may strain relationships with neighbors and board members. Consider whether alternative approaches might preserve community harmony while addressing your concerns.
3. Association Governing Documents
Review your HOA’s declaration, bylaws, and rules carefully. Some documents contain provisions regarding dispute resolution, attorney’s fees, and other factors that could impact your case. Pay particular attention to any anti-waiver clauses, which typically state that the association’s failure to enforce a restriction in the past does not prevent it from enforcing that restriction in the future.
4. Timing of Violations
Courts distinguish between violations that occurred during developer control versus those occurring after homeowner takeover of the association. If you’re relying on past developer non-enforcement as a defense, be aware that Florida courts have established that “prior actions of a developer cannot be used against the association in an attempt to establish selective and arbitrary conduct by the association.”
5. Prospective versus Retroactive Enforcement
Florida courts generally allow associations to begin uniform enforcement of previously unenforced restrictions on a prospective basis. If the association is enforcing rules going forward rather than attempting to penalize past violations, this may not constitute selective enforcement under Florida law.
6. Settlement Opportunities
Many HOA disputes settle before trial. Be open to reasonable compromise solutions that address your concerns without requiring protracted litigation.
How An Experienced Florida HOA Attorney Can Help
Navigating harassment claims against an HOA requires specialized knowledge of Florida association law. Our experienced Orlando, FL HOA lawyer can:
- Evaluate the strength of your harassment or selective enforcement claim
- Guide you through mandatory pre-suit requirements
- Document instances of selective enforcement properly
- Represent you in mediation or litigation
- Identify potential violations of Florida statutes
- Advise on the most cost-effective strategy to address the harassment
Contact Our Florida HOA Attorneys
If you believe you’re experiencing harassment or selective enforcement by your HOA, contact us today at 1-800-777-1305, by email at [email protected], or visit our website at https://www.pmlawfla.com/hoa-disputes/ to schedule a consultation with our team. Our experienced HOA dispute attorneys can help you understand your legal options and develop a strategy to protect your rights.
This article is for informational purposes only and does not constitute legal advice. Every case is unique, and outcomes depend on specific circumstances. Consult with a qualified attorney to understand how these principles apply to your situation.
