Q: I live in a very small HOA. The board has refused to enforce the deed restrictions that do not suit them. Board and committee activity is held in secret. They consider violations by board members and their friends as acceptable. It seems unless an owner brings a suit, there is nothing to be done. The attorney is seldom, if ever, consulted because he might suggest what is being done is inappropriate. Requests for attorney opinions are denied.
I am not convinced an attorney is concerned with board violations as much as the defense of the board against homeowners. Is it possible for an HOA to dissolve itself? Would it be correct to say, without a court ruling, that the state and county have no interest or authority over what happens? A.D., Fort Lauderdale
Answer: Unfortunately, you are correct. There is no state agency that can assist homeowner association owners if the board is not properly operating. It is a do-it-yourself project. This means either you must engage legal counsel and the court system or vote the board out of office.
As to dissolving the association, it’s an almost impossible task. Your documents should refer how to dissolve, but it’s usually a situation such as devastating hurricane damage to a majority of the association’s property. Most documents require not only a vote of the members but also any mortgage holders and/or other interested parties, including local governments. If you have common areas such as roads, fences, parks, clubhouses, etc., they would require title transfers to another entity.
I’ve known of only one homeowner association that has been terminated. I really do not feel that termination is the best way to go. I believe your best choice is to go to your neighbors and see what they say and try to get them involved.
Q: My neighbor is renting out his unit and the new tenants are smokers. I am asthmatic, and unfortunately their smoke comes into my front door and kitchen window. We share a common entryway that services both doors and exposes my kitchen window.
I am a unit owner and they are renters. They smoke all the time in front of my kitchen window and next to my front door. They also stand outside directly in front of my kitchen window at late hours and talk loudly. It is like they are in my kitchen talking.
The owner of the unit said to me he would rather have them smoke outside the front door then ruin his unit. Do I have any rights under Florida or federal laws? I need to mail something to the unit owner and my board showing I have rights to enjoy and live freely in my unit.
I know there are laws in Florida for indoor smoking, but do I have rights to open my kitchen window without the fear of cigarette smoke coming in from smokers in the common area, or having to smell or breathe in cigarette smoke when walking out from my unit for fresh air? K.K., Delray Beach
Answer: The question is not if you have rights, the question is how far you want to take the process to solve your problem. You have to try to convince the board, the owner and the renters to respect your needs.
I would recommend you send a letter to the three parties explaining that cigarette smoke, even secondhand smoke, is very disturbing to you. Ask them to please respect your needs by smoking elsewhere.
If that doesn’t work, send a certified letter to the three parties saying that if the problem is not corrected, you will take other actions to force the issue.
Obviously the first step is to seek a letter from your doctor stating that secondhand smoke is harmful to your health. Copies of this letter should be provided to the three parties with the final notice that should smoking continue, you will take legal action.
Although I’m aware that you may be covered by certain laws, I cannot provide legal advice. You must seek legal guidance to determine whether federal or state laws will force the issue.
Richard White is a licensed community association manager. He does not offer legal opinions; any other questions and comments concerning association operations can be sent to Richard White, 6039 Cypress Gardens Blvd., No. 201, Winter Haven FL 33884-4115; or email firstname.lastname@example.org.