Here in South Florida, most of our cities have residential neighborhoods and suburban communities where you may be thinking of buying a house or renting a home for your family. They often have pretty names like “Belle Meade” in Miami or “Cypress Run” in Coral Springs.
Map of the neighborhoods in North Miami Beach, Florida.
Buyers and Tenants Need to Consider Homeowners’ Associations
However, if you are a prospective buyer or tenant, any experienced Florida real estate lawyer is going to point out the importance of investigating what governing bodies exert power over that neighborhood or community.
In other words, do they have a Homeowners’ Association? It’s easy enough to investigate. Just ask your realtor. Or surf the web: there is an online list available for HOAs in Fort Lauderdale, as well as for Miami-Dade County, for instance.
If you are faced with two comparable homes – one with an HOA and the other without – you may want to weigh your options. Is the one with the HOA a better deal for you in the long run? Or is the idea of paying HOA fees enough to make you choose the option that has no Homeowners’ Association?
Consider the following:
1. Florida Homeowners’ Associations Act
There is a special set of laws that applies to HOAs in Florida. Chapter 720 of the Florida Statutes contains what is officially known as the “Florida Homeowners’ Associations Act.”
These statutes cover all sorts of things pertaining to HOAs, including:
- HOA powers and duties;
- meetings of the board of directors;
- official records;
- budgets;
- financial reporting;
- Officers and directors;
- display of flag;
- obligations of members;
- legal remedies of members;
- meetings of members;
- voting and election procedures;
- amendments;
- assessments and charges;
- lien claims;
- agreements entered into by the association; and
- dispute resolution.
Anyone living within the neighborhood or community governed by the HOA will be required to obey these laws as they pertain to its HOA. This means anyone buying a home in this location as well as anyone renting a home there will be legally bound to the Act.
So, if you are considering moving into a home governed by an HOA, you need to read and understand the implications of the Florida Homeowners’ Association Act. Because it defines the duties and obligations you will undertake as a resident as well as the responsibilities that must be met by the HOA.
2. What if HOA Violates The Florida Homeowners’ Association Act?
The laws contained in Chapter 720 of the Florida Statutes are good and valid law here in Florida. However, if you move into a home governed by an HOA, it’s important to know that there are no legally created agencies or departments that exist to oversee HOAs and their compliance with the Florida Homeowners’ Association Act.
If the HOA does something bad to you – like makes you take down your Gators Flag during football season – then you will have to go to court for justice.
Mediation and Lawsuit
Right now, the avenue under Florida law for a Florida homeowner to force compliance with the Florida Homeowners’ Association Act is to file a lawsuit and get a judge to order the HOA to obey the law.
And before you can get a final judgment, there will be another legal hurdle. The Act requires you to try pre-suit mediation before filing the case down at the courthouse.
Which may be a good thing: with an experienced advocate at your side, that pre-suit mediation may resolve the controversy before you have to go through the stress and expense of formally filing your complaint.
3. Your HOA Governing Documents
The Florida Homeowners’ Association Act is not the only law that governs the Florida HOA. There are also the provisions contained in the individual HOA’s governing documents. These are its Restrictive Covenants, Bylaws, and Articles of Incorporation. If the HOA has passed any Rules or Regulations, then these are also part of its governing documents.
Under Florida contract law, the HOA must comply with the language contained in its governing documents. Anyone moving into the community needs to know what these documents provide.
And they will need to check with an experienced Florida real estate lawyer if they have any questions, especially if this is an older HOA. Why?
This is because under Florida law, these governing documents may remain effective even if some newer Florida laws have been passed on the subject. In legalese, not all new Florida legislation will apply “retroactively” to these governing documents.
4. What HOAs Provide To Residents
In Florida, a HOA is similar to a condominium association – but they are not the same. So, if you are acquainted with how condos work, with their condo boards and condo meetings, then you will have a general idea of how a Homeowners’ Association operates.
In a Florida HOA, the residents of the neighborhood elect a group of people to oversee things. These are the members of its Board of Directors. How this is done, in detail, is described in the governing documents.
These directors have the job of basically managing the area so that property values are protected (and hopefully increased) as well as handling the financial job of collecting fees from all the homeowners to cover their management tasks, like upkeep of the community swimming pool or tennis courts. All their duties and tasks are described in the governing documents.
For many, an HOA is advantageous to them for several reasons, including:
A. Controlling the Neighborhood Aesthetics
Most neighborhoods have a certain “feel” to them, or their individual aesthetic. Maybe it’s the scattering of palm trees along most of its streets, or the fact that no home is over two stories high. Most of the facades may have brick, or stucco. Maybe fences are not allowed.
The individual HOA will control these community characteristics via its governing documents. They may even have a “design review committee” that makes decisions based upon applications submitted by residents.
For instance, if there are restrictions on fencing (it’s not allowed; it can only be a certain height; it cannot be made of wire; etc.) then you will not be able to have the fencing you want if it conflicts with their restrictions. If you ignore the restrictions, then you will be forced to remove the fencing at your own expense.
Most find these controls to be a good thing. Usually, the HOA can point to a correlation between its “aesthetics” regulation and rising property values for the area.
B. Controlling Parking and Safety Issues
The HOA will also be responsible for making sure that things are safe within the community. If there are alleys, then they will be monitored to make sure that fire department vehicles or utility trucks have 24/7 access as needed. Likewise, the HOA will secure and manage the local community pool, taking responsibility for making sure that there is proper oversight of pool chemicals as well as a lifeguard on duty if needed during the pool hours.
Additionally, the HOA may undertake to monitor what vehicles can park within the neighborhood. It may not be allowed to have a Recreational Vehicle (RV) parked in some communities, for instance. Or, there may be an HOA observing a parking rule that no cars are to be parked on the curb overnight. Again, this may be imposed for safety reasons.
5. The Cost of an HOA
The biggest negative for many Floridians of any HOA is the cost. Each HOA will charge money in the form of fees and dues. The more that the HOA is asked to do for the community, then the more it will charge the homeowners. There may also be “special assessments” for specific projects.
If the homeowner does not pay the HOA the required fees, dues, or assessments, then the law allows the HOA to place a lien on the home or residence.
A. Fees and Dues
Anyone considering buying a home in a community with a Homeowners’ Association needs to be prepared to pay these HOA fees and dues. And anyone considering renting a home with an HOA needs to be aware that the landlord may well increase future rent in order to compensate for an increase in HOA fees and dues.
Fees and dues for a Florida Homeowners’ Association can vary widely from one location to the next. That’s because so many different things can legally be covered by these charges.
If the HOA does the minimum – things like keeping rights-of-way clear, making sure that the lights work in the community center, etc. – then the fees and dues may not be high. However, if the HOA oversees a 24/7 security guard station; if it oversees a large community swimming pool and tennis court system; or if it is responsible for street upkeep or garbage pickup contracts, then the fees and dues will be much higher.
B. Special Assessments
Occasionally, the HOA may have a special project which needs funding. This will be something that is not covered by the standard fees and dues. This is usually an unexpected expense, like a crack in the swimming pool that must be repaired. If the HOA budget cannot cover the expense, then it will have the power to go to the homeowners and ask for more money. This is called a “special assessment” for this particular project expense.
Your HOA Decision
Again, if you are deciding upon a residence with a Homeowners’ Association here in Florida, then having the advice of an experienced Florida real estate lawyer can be invaluable. Once you buy the home or sign the lease, you will be obligated to comply with that HOA.
Living under the oversight of an HOA is a great convenience to some and a horrific stressor to others. Only you can make the decision about what is best for you and your family – and investigating the legal implications of the HOA is a wise factor in making that call.
Most Florida real estate lawyers, like Larry Tolchinsky, will offer a free initial consultation to answer your questions.
For more, see:
- Florida Homeowners Associations Filing Foreclosure Lawsuits Against Florida Banks: Foreclosing on Banks Defaulting on Florida Community Association Fees;
- Florida Condos, Coops, TimeShares, HOAs, and CDDs: Know the Difference Before You Buy.
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