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The Serious Perils of an Association's Avoidance of its Maintenance and Repair Duties

FLORIDA DECISION ALERT: Coconut Key Homeowner's Assoc. v. Gonzalez, 4th DCA, May 9, 2018

The 4th District Court of Appeals recently issued its ruling in Coconut Key Homeowner's Assoc. v. Gonzalez, and all community association boards and managers would do well to take note of what can happen when a condominium association or HOA fails to maintain and repair common elements.

In this case it was alleged that the HOA failed to make necessary repairs to a surface water management system located behind the home of the plaintiff, Gonzalez. HOA governing documents established the obligation of the HOA to maintain this system, and Gonzalez claimed to have experienced flooding and damage to her property resulting from the HOA's failure to do so.

Gonzalez brought two claims against her HOA. The first sought monetary compensation for damage to her property, which Gonzalez claimed was caused by the failure to maintain and repair the drainage swales. Her second claim sought an injunction ordering the HOA to fix the drainage system. Gonzalez also sought her attorney's fees.

A Broward County jury decided that the HOA did, in fact, breach its governing documents by failing to maintain the drainage system but, surprisingly, also found that Gonzalez could not show that the damage to her property was caused by the poor drainage condition. Therefore, Gonzalez was denied damages. However, as Paul Harvey famously said, "and now...the rest of the story": the trial court went on to grant Gonzalez her injunction but denied her claim for attorney's fees.

On appeal, the 4th DCA considered two issues: a) whether the injunction was proper; and b) whether Gonzalez was entitled to attorney's fees.

On the question of the injunction, the 4th DCA noted that it was proper. Gonzalez had proved that the HOA had a duty to repair the drainage swales and breached its duty to do so. Second, Gonzalez had shown that the only way to fix the problem of flooding at her property was to fix the drainage swales. Finally, that Gonzalez had no other remedy for any future harm that might be caused due to the disrepair of the swales behind her property. The court noted that an injunction in this case fell squarely within Gonzalez's rights under Fla. Stat. 720.305(1) relating to claims against an Association for its failure to comply with its governing documents.

However, the real kick in the gut for the HOA was the 4th DCA's reversal of the trial court on attorney's fees. Again, the court took note of Fla. Stat. 720.305(1), which provides for the prevailing party to recover attorney's fees in litigation involving the enforcement of the governing documents of an HOA. The trial court had denied Gonzalez her fees under the theory that since she was unable to prove that she was entitled to monetary damages, she was not a "prevailing party." The 4th DCA disagreed, noting "[P]laintiffs may be considered a 'prevailing party' for attorney's fees if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Since Gonzalez had succeeded in proving the HOA breached the governing documents and obtained her demand for an injunction ordering the HOA to make repairs, she was the "prevailing party" and, hence, entitled to recoup her attorney's fees from the HOA.

The moral of the story? Condominium associations and HOAs must be ever-vigilant in honoring their maintenance and repair duties under their governing documents. By failing to do so, they risk litigation ordering compliance and paying the legal costs of a member suing to enforce compliance.

Jon E. Lemole is an attorney with Tannenbaum Scro, P.L. With offices in Sarasota, Clearwater and Orlando, Tannenbaum Scro focuses on representing community associations in litigation involving construction defects and compliance with statutory and governing document obligations.

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