Florida Law: Michael J. Gelfand, Esq.
Association Cannot Sue City to Enforce City Codes
Given the high volume of mortgage foreclosures, it is not unusual for communities to have a property that is not being maintained, by either the owner or the bank. Sometimes there are eyesores or uses that seem to be a nuisance. If a community is lucky, their municipality may start a code enforcement action. But what happens if the municipality refuses to proceed with an enforcement action? Unfortunately, it appears that an association cannot force a Florida municipality to move forward.
A recent Florida appellate court ruled that an association could not sue a city to file and prosecute a building and zoning enforcement action against another owner. In Detournay v. City of Coral Gables, 38 Fla. L. Weekly D2552 (Fla. 3rd DCA, December 4, 2013), a community sued the city to prosecute an enforcement action against a nearby property owner. The property owner allegedly operated a private yacht basin in violation of the city’s building and zoning codes.
The trial court entered a judgment for the city. The Florida appellate court determined that the association’s claims should be dismissed based on the Florida Constitutional principle of “separation of powers.” As the court explained, the judicial branch of government generally cannot interfere with the discretionary functions of the legislative or executive branches of government.
“In this situation, the courts have no role in advising or directing a government when, if, and how to maintain an administrative enforcement action: the role of the courts is limited to adjudicating any such action when it is properly at issue before them,” the court stated. “To the extent that the homeowners seek to have the city desist in its settlement efforts and instead vigorously prosecute the enforcement actions, they need to knock on the doors of city hall, not the courthouse.”
This decision clearly illustrates why communities need their own covenants. Reliance on government code enforcement has its limitations! Note that this is equally true in Florida as direct legislative decisions and indirect budget decisions limit the ability of municipalities to regulate property uses. The decision may also reinforce the practical need for association members and leadership to become involved with their municipalities and counties.
Shared Gate: Who Controls and Who Maintains?
Associations with greater frequency share gates, access roads, and other facilities. Just as in any relationship, when there is sharing, questions follow. Who has to maintain and repair the shared property? Who makes the decisions? Sometimes, questions lead to arguments. . .and litigation.
A recent Florida appellate court addressed the issues associated with a shared entry road and gate in The Grove at Harbor Hills Homeowners Association v. Harbor Hills Development, L.P., No. 5D12-4542 (Fla. 5th DCA, December 13, 2013). The facts indicated that The Grove at Harbor Hills Homeowners Association (The Grove) owned a gate, its guardhouse, and related property, including the access road to The Grove and an adjacent subdivision, Harbor Hills Homeowners Association (Harbor Hills). The common developer of both communities provided Harbor Hills an easement for ingress and egress over the road and through the gate.
A “joint use agreement” provided that the two association shared maintenance, repair, upkeep, and taxes of the road and the gatehouse with a separate provision providing that the “road, gatehouse, gate, and common property adjacent thereto shall be maintained primarily by Harbor Hills.” As it sometimes happens with shared facilities, an unresolved dispute let The Grove to sue Harbor Hills over maintenance and control of the gate, guardhouse, and access road. Concluding that the agreement was valid, the trial court ruled that Harbor Hills was entitled to damages for cost related to the maintenance of the gate, guardhouse, and related property and that Harbor Hills had the right to control and maintain the gate, guardhouse, and related property.
The Florida appellate court reversed the part of the decision providing that Harbor Hills alone had the right to control and maintain the gate, guardhouse, and related property. Disagreeing with the trial court’s determination that the words “control” and “maintenance” are synonymous, the appellate court looked to dictionaries for the plain meaning of the words. Utilizing Black’s Law Dictionary and Merriam-Webster’s Collegiate Dictionary, the appellate court elucidated the following definitions:
Maintain: To keep something in its existing state by making repairs or correcting problems or to preserve it from failure or decline.
Control: To have power over something, to direct the actions or function of something in a certain way, or to exercise restraining or directing influence over something.
The appellate court agreed with the trial court that the joint agreement provides Harbor Hills primary responsibility for “maintenance” of the gate, guardhouse, and related property. However, “control” of the gate, guardhouse, and related property, including staffing decisions, remained with their owner, The Grove, subject to easement rights of Harbor Hills.
It appears that the appellate court decided that the ownership of property controls the property, unless there is an agreement to do otherwise. The ability to maintain appears related to and is limited to physical work. It is not clear from the decision whether the parties disagreed as to who authorized repairs, as opposed to staffing and administrative issues. The decision appears to leave unclear as to whether primary responsibility for maintenance includes ultimate decision making.
The moral of the story as to sharing agreements can be valuable for all parties. Merely specifying use rights is only half the issue. Specifying who makes decisions, and perhaps how decisions are made, are frequently just as important. If you have any questions regarding sharing agreements, contact your association’s counsel.
Michael J. Gelfand is a Partner in the law firm of Gelfand & Arpe, P.A., in West Palm Beach, Florida. You may reach him by e-mail at Michael@flcaj.com or by phone at (561) 655-6224.