Q: We have a homeowner in my homeowners’ association (HOA) who does not like to follow the rules.  Recently, he painted his house a color that is not within the HOA approved color palette.  What are the HOA’s options in getting him to comply? S.F., Bonita Springs, FL

A: Your HOA has several options in order to obtain compliance from this owner.  The board of directors can either choose to fine, suspend use rights to the association’s common areas and facilities for a reasonable time period, begin pre-suit mediation and, eventually, file an injunction lawsuit in the courts.

If the association chooses to either fine or suspend use rights to the association’s common areas and facilities, the board of directors needs to consult with its legal counsel to ensure that the association follows the proper process.  Generally, the first step is to send an owner a warning/compliance letter in order to see if the association can obtain compliance from the owner without further legal action.  If the owner does not comply, the next step is for the association to levy fines or a reasonable suspension time period from the use of the common areas and facilities.  This process will require that the association allow the owner to plead his/her case in front of a committee of at least three owners who are not officers, directors, or employees of the association, or the spouse, parent, child, brother, or sister of an officer, director, or employee.  It is the committee’s decision whether to uphold or reject the board levied fine or suspension.

The association’s other option is pre-suit mediation and, eventually, an injunction lawsuit if no settlement is reached in pre-suit mediation.  The association will need to send a pre-suit mediation notice to the owner.  Mediation is a process whereby both parties work together toward a resolution with the help of a third-party neutral mediator.  If no settlement is reached in mediation, then the next step would be an injunction lawsuit in the courts to obtain a judgement requiring the owner to paint his house in an association approved color.

The association has several options, and one option may be a better fit for this situation than the others.   As such, I strongly recommend that the association consult with its legal counsel regarding the best option for this situation as well as adhering to the timelines required under your governing documents and Florida law.

Q:  I am a unit owner in a condominium association.  Last month, I sent the association a request to email me the meeting minutes from the last six months of board meetings.  As of today, they haven’t sent me the meeting minutes yet.  What are my options here? K.G., Ft. Myers, FL

A:  First, it is important to clarify that the association’s obligation under Florida law is to provide you with access to the official records.  It does not require the association to send you any records.  This means that the association is compliant with Florida law if the association representatives reach out to you to confirm a time for you to come to the association office or the management company office to view the official records.  That being said, Florida law is clear that the association must provide you with access to the records within 10 business days of receipt of the request.  As such, if it has been more than 10 business days, you may have recourse to file a complaint with the Florida Department of Business and Professional Regulation.  The association may also be liable to you monetarily for its failure to provide you with access to the official records. At this point, I recommend speaking to legal counsel regarding your options and next steps so that you can view the association’s official records in a timely manner.

Q:  I serve on the board of an HOA.  It has been in existence for almost 30 years.  I heard that the community has to take steps to preserve its governing documents, or they will no longer be enforceable.  Can you please provide guidance on this? D.M., Naples, FL

A:  Depending on how close your homeowner’s association is to its 30th birthday, I recommend that the board prioritize this issue and seek legal counsel on the next steps sooner rather than later.  The law that affects your governing documents and your association in its 30th year is the Marketable Record Title Act.  It requires your homeowner’s association to take affirmative steps to preserve its governing documents before your community turns 30.  If the association does not preserve its governing documents before the community turns 30, there is a strong argument that the rights and responsibilities of the association and of the owners in the governing documents are unenforceable.  Preserving governing documents prior to the homeowner’s association’s 30th year is relatively simple and can be done via a board vote.  However, if the governing documents are not preserved before the 30th year, it will take a membership vote to revitalize or revive the governing documents.

S. Kyla Thomson, Esq., is a partner of the law firm Goede, DeBoest & Cross.  Visit www.gadclaw.com to ask questions about your issues for future columns or send your inquiry to: question@gadclaw.com.  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.

This article originally appeared on Naples Daily News: Condo Q & A