Owner furious that condo's no smoking at home policy ignored. Can neighbor be stopped?
Live in a home governed by a condominium, co-op or homeowner's association? Have questions about what they can and cannot do? Ryan Poliakoff, an attorney and author based in Boca Raton, has answers.
Question: I live in a 55+ condo association. In 2015, we passed a strict “no smoking” bylaw. Smoking is not allowed on our property, including inside of units. When I was president, I had to get our attorney involved to get one renter who smoked in her rental condo to stop, even though she rented with the no smoking policy. This renter was deeded a unit nearer to my own by her deceased parents.
What type of legal action can I take so that she doesn’t just ignore the bylaws? I also just found out that a board member smokes in her condo too, and so I worry the new board is just going to ignore the bylaws. Unfortunately, I don’t have the money to file a lawsuit. Signed, J.D.
Dear J.D.,
You are in a position that sadly many owners share — you have a right to bring a legal action to enforce your own covenants and rules, but you don’t have the financial means to do so.
The Division of Condominiums has very limited jurisdiction over condominium disputes, and it does not have the power to investigate these kinds of rules violations. So, you as an owner would need to bring your own legal action, which could cost tens of thousands of dollars and, if you lose, would subject you to being responsible for the defendant’s legal fees. I have seen many owners declare bankruptcy after losing meritorious lawsuits. I do not recommend that you bring an action on your own, without an attorney — my experience is pro-se litigants will almost always lose when facing off against a licensed attorney.
Your best bet would be to work to change the board and elect board members who are interested in enforcing the bylaws (or, more likely, the declaration of condominium). That’s really the only option that you have. It’s difficult and time consuming, but it absolutely can be done; and once the new board is in place, they would have the power to enforce the “no smoking” covenant as a common expense.
Legal expert says lawmakers had other options to address structural integrity
Question: The legislature should have given another year or two for condominiums to implement the mandatory reserves. They got caught, and we are paying the price. Many people, including people here, will lose their homes. I also think that management companies and lawyers involved could have done more to stand up for us. You could do more now, but will you? Signed. D.O.
Dear D.O.,
I certainly appreciate how upset you are — the new mandatory reserves, in combination with the exponential increases in insurance costs, are creating great financial hardship for condominium owners throughout the state. However, you are under a misimpression that management companies or lawyers can simply tell legislators what to do.
In fact, there was extensive and aggressive lobbying this legislative season to delay or modify the Structural Integrity Reserve Study rules, as has been the case in previous years as well — but the legislature had little interest in doing so. They don’t say “how high” just because lawyers say “jump.”
There are many competing interests that go into legislation, and there are plenty of people advocating on the other side, as well. The legislature clearly feels that mandatory reserves will save lives, and that saving lives wins, despite the widespread financial hardship that the laws will create.
Personally, I think that the structural integrity reserves are the wrong solution to the problem. They are nothing more than a financial planning tool, not themselves a mandate to make necessary repairs (although, there are such mandates in the Act). As far as I’m concerned, the better solution would have been to require boards to maintain their properties, but also to give boards the broad and unfettered right to borrow money and pass special assessments regardless of any conflicting language in their governing documents.
That way every community could decide whether they want to collect funds in advance through reserves, or instead pay later through loans or special assessments. Yes, it’s arguably shortsighted to kick the can down the road, but is that really a decision to be made by legislators, rather than owners? Give municipalities broad authority to inspect, certify and, if needed, forcibly vacate properties that are not safe, but let those owners make, and ultimately live with, their financial decisions.
Ryan Poliakoff, a partner at Poliakoff Backer, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of "New Neighborhoods — The Consumer’s Guide to Condominium, Co-Op and HOA Living." Email your questions to [email protected]. Please be sure to include your location.
This article originally appeared on Palm Beach Post: Condo smoking ban ignored, but what are the real consequences?