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What to Do With Tenant Who Consistently Breaks HOA Rules?

The landlord doesn’t care as long as the rent arrives on time. What are the options? Also: If a tenant and the board are in litigation, can meeting minutes be secret?

STUART, Fla. – Question: We have a tenant in our homeowners association (HOA) that consistently breaks the rules. The landlord is indifferent because he is receiving rent, but the neighbors are very frustrated. What can we do? – B.G., Ft. Myers

Answer: This is a common question and ultimately requires a detailed review of your governing documents to provide a specific recommendation. Generally, however, there are a few potential solutions.

First, if your documents require the association to approve or deny lease renewals, you could simply wait until the lease is up for renewal and then deny the request. This only works, however, provided the board has consistently denied leases under similar circumstances and if you have express authority to deny leases for prior violations in your community. The neighbors may have to wait a bit, but that wait is likely shorter than the duration of an eviction procedure.

Second, you could fine the owner. Landlords rent the home for revenue, so reducing the net revenue will catch the landlord’s attention. The owner is generally responsible for the acts of his/her tenants, so you could fine the owner $100 per violation or up to $1,000 for a continuing violation or even more depending on the language in your covenants. This only works, however, if you have the appropriate fine committee established and have consistently enforced the rules being violated by this particular tenant.

Third, you could attempt to terminate the lease and evict the tenant. This can be helpful if it is a long-term lease and is highly dependent on the language in your covenants. Because the association is not a party to the lease, it is important that your documents designate the association with the authority to file such a lawsuit. Depending on your jurisdiction, this may still not be enough and the board should be aware that a contested eviction action can take months for resolution.

There are other potential and creative remedies, but the general response is that your ability to remove the bad tenant is highly dependent on the strength of your covenants. Thus, the first recommendation is to discuss the matter with a licensed Florida attorney to determine the strengths and weaknesses of your documents in this context.

Question: Our condominium has initiated litigation against one of our unit owners. The owner being sued is requesting copies of minutes from closed board meetings where the lawsuit was discussed. We presume the owner wants to use the minutes to support her defense. Are we required to deliver these minutes? – P.R., Bonita Springs

Answer: Most likely, no. Generally, all board meetings must be noticed with at least 48 hours’ posted notice and the board must keep minutes of the meetings. The statute also requires all board meetings to be open to the members, except when discussing personnel matters and except when the board is discussing proposed or pending litigation with the association’s attorney. Because the attorney-client privilege extends from the attorney to the Board of Directors, it is critical that these meetings are closed to the owners because an open meeting may waive the privilege.

More importantly, the attorney is unable to provide the appropriate legal counsel if the defendant is sitting in the room.

If this is true, the same should apply to the minutes. It is important for the minutes to reflect actual motions and votes that are made by the board. For example, if the board is delegating authority to a director with the ability to settle the lawsuit at mediation, it is very important that the minutes reflect the settlement parameters so that the director can demonstrate his or her actual authority to settle at the mediation. If those minutes are not private for the pendency of the litigation, then you would be forced to give the opposing party critical settlement information that provides an improper advantage in litigation.

Thus, the minutes should be confidential from owner access for the pendency of the litigation involving the owner. After the lawsuit has concluded (including appeal periods) the minutes would be open records and available for inspection by all owners, including the owner involved in litigation with the association.

Attorneys at Goede, Adamczyk, DeBoest & Cross respond to questions about Florida community association law. With offices in Naples, Fort Myers, Coral Gables and Boca Raton, the firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

© 2019 Journal Media Group; Attorney Steven J. Adamczyk is a shareholder at the law firm of Goede, Adamczyk, DeBoest & Cross.