Florida Community Associations: Recovering Attorney Fees and Costs When Enforcing Covenants
In this blog, Jay Fraiser, Partner at Moorhead Law Group of Pensacola, Florida, writes about Florida Community Associations and the recovery of attorney fees and costs when enforcing covenants. His practice areas include condominium and community association litigation and general servicing. To learn more about Jay and his areas of practice, click here
Boards of Directors of Florida Community Associations are tasked with enforcing the various covenants and restrictions contained in the Association’s governing documents. This task is often complicated by financial considerations that Boards must weigh when facing enforcement decisions.
In Florida, attorney’s fees are recoverable when permitted by statute or contracts. When dealing with covenants, the covenants are considered a contract. Generally, Florida statutes permit a prevailing party to recover reasonable attorney’s fees incurred “in litigation matters” as well as in actions for the collection of past-due assessments. But, what about attorney’s fees and costs associated with covenant enforcement actions that have not yet progressed to suit?
Unfortunately for many Florida Community Associations, there is no statutory authority that provides for the recovery of “pre-litigation” attorney’s fees and costs incurred during covenant enforcement actions. An Association’s governing documents must explicitly reference the pre-litigation attorney’s fees and costs before they become recoverable. Experience has shown that a broad majority of Florida Association’s governing documents are silent on this issue. This eliminates the potential for the collection of pre-litigation attorney’s fees and costs in enforcement actions. The conditions created by this silence can complicate a Board’s decision to enforce the Association’s covenants and restrictions.
Boards facing this dilemma can consider presenting Association members with the option to amend the governing documents to permit the assessment of attorney’s fees and costs in pre-litigation enforcement actions. The amendment process presents its own challenges, but the ability to recover pre-litigation attorney’s fees and costs may be worth the effort. Recovery of pre-litigation fees and costs provides a powerful tool to the Association in enforcing its covenants and restrictions that would not otherwise exist.
There are several considerations that the Board and Association members should be familiar with before taking action to amend an Association’s governing documents. It is highly recommended that you consult a Florida attorney who specializes in Florida Community Association Law if you have questions or concerns about your Association’s ability to recover attorney’s fees and costs incurred as a result of pre-litigation enforcement actions. The Moorhead Real Estate Law Group is happy to discuss this topic, or any other, topic facing your Community Association.