Community Law Determines Collection for Damages

A frustrated teenager forced an HOA gate open with his car. Do his parents pay for damages? Also: Can I nominate myself from the floor for an HOA position?

NAPLES, Fla. – Question: Our homeowners’ association (HOA) is a gated community that uses an automatic entry system. Recently, one of our member’s teenagers became frustrated when the gate did not open automatically and used his vehicle to force the gate open. The gate strike caused significant damage to the gate which the association paid for.

Can the board just assess the parents for the cost of the gate repairs? – K.L., Naples

Answer: This depends on the assessment language in your association’s governing documents. Often, the assessment provision will contain provisions allowing the association to levy different types of assessments against the lots in the community. The two most common types of assessments are regular or special.

Frequently, the governing documents will also provide for an individual assessment that allows the association to levy an assessment against only one lot or collection of lots for a specific purpose. It can be levied by the board of directors for the cost of damages or remediation work performed by the association as a consequence of the owner damaging the common property or failing to maintain their lot in accordance with the standards established by the association.

Furthermore, the association may have the right to enforce the individual assessment in the same manner as a regular assessment depending on how the provision is drafted. This means if the owner fails to pay, the association may be able to use its lien authority to secure the delinquent amount.

If your association’s governing documents have an individual assessment clause or similar provision, then yes, the board of directors could levy an assessment against the offending owner’s lot for the cost of the gate repairs. If your association’s governing documents do not have an individual assessment clause, then the board likely does not have the authority to assess the cost of the gate repairs.

Without an individual assessment or similar clause, the association will likely be forced to use the traditional methods of addressing the issue, such as filing a small claims action for the cost of the repairs or issuing fines and suspending use rights.

Question: My community recently had its annual meeting and election. At the annual meeting, I attempted to nominate myself from the floor and was told the association does not allow for nominations from the floor. Was the association correct or did they violate my rights? – M.T., Fort Myers

Answer: Your question does not indicate whether you live in an HOA or condominium, and the type of association you live in will likely dictate the answer.

For condominiums, Section 718.112(2)(d) 4.a., Florida Statutes, states that any unit owner or other eligible person desiring to be a candidate for the board of directors must give written notice of their intention at least forty (40) days before the scheduled election. As nominations from the floor fail to meet this requirement, condominiums are not permitted to take nominations from the floor.

Alternatively, for an HOA, Section 720.306(9)(a), Florida Statutes, states that an HOA must conduct its election in accordance with the procedures established in its governing documents. Furthermore, this same section provides that a member may nominate themselves as a candidate at the meeting where the election is being held unless the election process provided for in the association’s governing documents allows candidates to be nominated in advance of the meeting. The association is not required to allow nominations from the floor of the meeting.

Assuming the HOA provides for an advanced nominating process, an election may not even be required if there are either an equal number or fewer qualified candidates than vacancies to be filled. Therefore, the default in HOAs is that nominations from the floor are permissible unless otherwise provided in the governing documents.

Many HOAs have provisions that provide for advance notice of a member’s intention to nominate themselves as a candidate. These procedures are often pulled directly from the condominium statute. Therefore, depending on what type of association you live in and election processes established by your governing documents, the association may have been correct in preventing you from nominating yourself at the election meeting.

Should you desire to challenge your association’s action, election disputes in condominiums and HOAs must submit to the Division of Florida Condominiums, Timeshares, and Mobile Homes for binding arbitration, but it is important to note that the law for HOAs changed recently to also allow election challenges to be filed in a court of competent jurisdiction.

The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

© 2022 Journal Media Group. Christopher I. Miller, Esq., is an attorney with the law firm Goede, DeBoest & Cross, PLLC.

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