Enforcement of Covenants
Upon retaining our Firm as legal counsel, many of our clients, specifically homeowner’s association, quickly ask for an explanation regarding the covenant enforcement process. This article helps explain how Martell & Ozim, P.A. approaches covenant enforcement for our homeowner’s association clients.
The covenant enforcement process begins with inspecting the Community. Typically, your management company will send violation letters to the Owner regarding the observed violations in an attempt to resolve the matter prior to our Law Firm’s involvement. The number of violation letters sent to the Owner is determined by the Board of Directors. If the matter is not resolved, it should be forwarded to our Law Firm’s attention with photographs of the violation. At this point, our Law Firm would proceed as follows:
- Our Law Firm would send a demand letter via certified mail requiring compliance. Florida Law requires a reasonable period to be offered to cure a violation, and as a result, how long you offer an Owner to resolve an issue will depend on the violation. For example, removing a trash bin will likely require immediate compliance but repainting the house may require thirty (30) days.
- Upon the expiration of the initial attorney demand letter, the Association may proceed with a final demand letter or move forward with a Statutory Offer of Presuit Mediation. The Statutory Offer of Presuit Mediation is required before a lawsuit can be filed. The Owner shall have twenty (20) days to accept the offer and if the offer is accepted, a mediation will be scheduled. The costs of the mediation are to be split among the parties.
- If the Owner fails to respond to the Statutory Offer of Presuit Mediation within twenty (20) days or if a mediation is scheduled but the issue is not resolved at mediation, the Association may proceed with the filing of a lawsuit seeking injunctive relief. The remedy usually requires the Owner to comply with the Association’s governing documents under threat of civil contempt sanctions.
- After the Complaint is filed, the Clerk of Court will issue a summons which must be served on the Owner. After service, the Owner has twenty (20) days to respond or a default is entered against the Owner.
- If a default is entered, the Association can proceed with obtaining a final judgment for injunctive relief against the Owner. If a factual dispute is raised, a non-jury evidentiary hearing may be required before a final judgment is obtained. The final judgment will require the Owner to reimburse the Association for the legal fees incurred by the Association in the lawsuit if the Association prevails.
- If the Owner fails to comply with the Court Order, the Association can move for civil contempt sanctions. The Court has wide discretion as to the type of sanctions it may impose, including but limited to, jail time, additional fines, and/or allowing the Association to take self-help remedies with the presence of law enforcement at the property and converting those costs into an assessment which may be foreclosed upon. Jail time is usually reserved for multiple violations of a Court Order, but the Courts will allow the Association to enter the property to perform self-help with the presence of law enforcement.
It is our hope that this summary serves to provide your community with transparency in the enforcement process. If your community needs assistance with the enforcement of your covenants, please do not hesitate to contact Martell & Ozim, P.A.