Can an Association Suspend an Owner’s Right to Use Common Facilities?
Posted August 18, 2016
Association boards frequently ask what recourse they have against owners who fall behind on paying assessments, or violate other provisions of an association’s governing documents. While most associations’ governing documents provide for the right to fine owners and place a lien on their property, not all boards are aware that they may also suspend owners’ rights to use common elements or facilities.
What Rights Can Be Suspended?
Under the Florida Homeowners’ Association Act and the Florida Condominium Act, an association may suspend, for a reasonable period of time, an owner’s right to use common elements or other association amenities, for failure to timely pay assessments or for failure to comply with a provision of the declaration, bylaws, or reasonable rules of the association. For instance, an association may suspend an owner’s right to use the association’s gym, pool, or recreation facilities, until the owner comes into compliance. The suspension not only applies to an owner, but may also apply to an owner’s tenants, guests, and invitees.
Is the Right to Suspend Automatic?
If an owner is more than 90 days delinquent in paying any monetary obligation (e.g., a fee, fine, or assessment) due to the association, the association may suspend the right of the owner to use the common elements until the monetary obligation is paid in full. Under this scenario, no written notice must be provided to the owner prior to suspending the owner’s right to use the common areas.
In contrast, if the suspension of rights is the result of an owner failing to comply with a provision of the association’s governing documents, the board must provide at least 14 days written notice and an opportunity for a hearing to the owner, prior to suspending the owner’s right to use the common elements.
Are There Exclusions?
Yes. A homeowners’ association may not prohibit an owner or tenant from having vehicular or pedestrian access to a residence, including, but not limited to, the right to park. Further, a condominium association may not terminate utility services provided to a delinquent unit, nor may an association prohibit a unit owner’s use of limited common elements that were intended to be used only by that unit, or common elements needed to access the unit, such as parking spaces or elevators.
Shannon Puopolo at Henderson Franklin
August 18, 2016 10:55 AM