Boards who snooze over the summer may lose

Well just about all of the remaining snowbirds have flown back North until next season. During last season there were many rules and restrictions violations at our local condominium buildings and gated neighborhoods ranging from late night pool parties, unlawful pets, too many guest and rental visits, smoking and noise violations, parking violations, failure to maintain homes and yards and various forms of obnoxious behavior causing nuisance to others.

Some violation letters were written to tell the inconsiderate perpetrators to knock it off but their violations continued. We got to the end of season and most of the board members went back up North and with their leaving the ‘out of sight/out of mind’ phenomenon is kicking into gear.

While those who left are no longer bothered by the violations, the members who live here year-round may still be suffering from the violations that continue on. As the board is gone and not planning to have any meetings until late fall or next winter, nothing further happens to enforce the violations.

The directors come back in December or January and get an earful from the permanent residences of what nefarious things continued to go on over the summer and fall and demand that something be done about it.

We will then get calls from the president or manager asking us to immediately bring legal action against the violators so the members can get some relief. Well guess what? It’s too late.

There are legal defense concepts called waiver and estoppel which provide that once you know of a legal right for which you can sue, you have to bring legal action within a timely manner or you will be time barred from having a legal claim because you ‘sat on your hands’ in light of your rights to bring a legal action. You waived your rights and are ‘stopped’ from bring suit because of your inaction once you were aware of the violations.

Reported Florida case have said anywhere from six months to one year of inaction is enough time to waive your rights and another just sending another letter within six months to a year is not enough to preserve your right to sue. You must actually file a legal arbitration, mediation or court action within the six months to one year.

So, because you waived your rights and are therefore stopped from bring suit on the past violations, you must start all over again. You must first wait for a new violation, send a new enforcement letter and then bring legal action after a reasonable period of time has passed since the letter and the violation continued uncured — about 30 to 60 days.

We see some associations do this over and over season after season and many violators know how this works and are counting on the association just sending them another letter and taking no further enforcement action.

Directors must realize that it is their ‘duty’ to enforce the rules and regulations of the association. If the board operates in the manner discussed herein and fails to bring suit in a timely manner, the directors may find themselves at the other end of a lawsuit against them from one or more owners for their failure to carry out their fiduciary duty to all the owners of their community.