Condo questions: What is the HOA responsibility in neighbor dispute? – TCPalm

Steven J. Adamczyk Esq., Special to TCPalm Published 9:00 a.m. ET Dec. 23, 2020

Editors note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC, respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

What is the responsibility of a homeowners association when neighbors fight?(Photo: ashumskiy)

Q: There are two neighbors in our community that do not get along. They keep threatening each other, and the police have been called multiple times. Each neighbor is demanding the HOA do something about the others behavior. What is our responsibility here?

H.M., Port St. Lucie

A: This is a frequent question, and the issue places the board in a difficult position because nobody wants this in their neighborhood, but the board also needs to realize that the association is not a peacekeeping force and almost never serves a security force to deal with these disputes. Generally, we recommend that the board advise each neighbor that they are instructed to contact the police if they ever feel that they are in physical danger. The notice to each owner should remind the owners that the association is neither equipped nor trained to serve as a security force.

The problem is that the association will generally have a duty to enforce violations of the covenants. Typically, each neighbor argues that the other is violating the nuisance provision of the covenants and often the fighting involves other objective violations like parking violations. If the neighbors are violating the covenants, the association likely has a duty to enforce, but that should be the extent of the boards involvement. You also need to review the specific definition of nuisance in your covenants because it could have broad implications. If the board elects to pursue one neighbor for violating a nuisance which is only broadly defined as an annoyance then the board is setting a dangerous precedent for future personal disputes and altercations.

I recommend you consult your legal counsel to discuss the specific requirements and provisions of your covenants and to propose a plan of action to address the situation without assuming a duty of care to keep each neighbor safe from the other.

Steven J. Adamczyk Esq. is a shareholder of the law Firm Goede, Adamczyk, DeBoest & Cross.(Photo: CONTRIBUTED PHOTO)

Q: A ground floor unit owner has been complaining for months that she can hear every footstep above her. The upper floor unit was just listed for sale and the pictures appear to show new wood floors and the owner never sought approval before installing the floors. What can the association do here?

G.G., Stuart

A: The answer to your question is highly dependent on the language in your condominium documents. First, I should note that most condominium documents provide that the unit begins at the upper surface of the concrete floor meaning that the wood floors would be part of the unit. You then need to review the condominium documents to determine whether the declaration of condominium authorizes the board to adopt flooring requirements, whether the documents require the owner to get approval before installing new hard surface floor and whether the unit owner is able to install hard surface flooring in the first place under any circumstance. Many older condominium documents require carpet in certain rooms without exception.

If the condominium documents are drafted well, then they should require the owner to obtain approval and provide the association with authority to adopt specifications for underlayment and sound-absorbing materials under the flooring. It is also helpful to have language in your documents providing a mechanism for the association to force the owner to remove unapproved floors or prove that the floors have appropriate underlayment. We often see owners sign contracts for underlayment, and the contractor simply skips the underlaying or uses a cheaper alternative that does not meet the associations minimum requirements.

If the specific underlayment requirements are not in the declaration of condominium, you need to determine whether the board has adopted a specific requirement by rule. Because the rule would regulate activity in the unit, you would need to make sure that the board adopted the underlayment specifications after providing at least 14 days mailed and posted notice of the board meeting where the resolution was adopted. If the board has never adopted specific underlayment requirements, or failed to give proper notice, it is possible the association never could have denied an application, and this could create a defense to enforcement.

Ultimately, the strength of the boards authority here is dependent on your specific documents and we recommend the association work with its legal counsel to provide an opinion. If you have detailed documents, the board should be able to force an application and determine whether the owner complied with minimum underlayment requirements. If this is a violation, I should also note that this could hold up a sale of the unit and the association should make sure that it accurately completes the estoppel if there is a sales application and properly document any violation.

Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Visit our website http://www.gadclaw.com or to ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com. 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, Adamczyk, 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.

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Condo questions: What is the HOA responsibility in neighbor dispute? - TCPalm