The Unruly Condo Tenant

The unruly condo tenant causes much gnashing of teeth and unhappiness in condominiums. Good news for condo owners is that the unruly tenant is far less common than the well-behaved tenant. The bad news? Unruly tenants exist. And in some cases, the problem is considered so serious that the owners amend the declaration of condominium to limit or eliminate rentals altogether.

What do these folks do to cause problems? Most often it is noise, but many often violate parking rules, bring illegal pets, damage common elements, and threaten other residents. The owner landlord often thinks the tenant is a good tenant because the tenant pays rent on time, is polite to the owner, and as far as the absentee owner is concerned, does everything right. The owner doesn’t have to endure the problems on site.

One of the simplest ways to address unruly tenants is the fining process. Florida Statutes provide authority to fine owners, tenants, and guests, even if fining authority is not specifically granted in the condominium’s governing documents. A fine may be levied by the association for failure to comply with the association’s governing documents or its reasonable rules.

The statute sets out a clear and simple procedure for levying a fine. First, the board of directors votes to impose a fine at a board meeting. Then, the board must provide the person to be fined notice of the fine and opportunity for a hearing no less than fourteen (14) days from date of the notice. The hearing is before a three-owner member fining committee selected by the board. The committee members must not be directors, officers, or employees of the association nor a spouse, parent, child, brother, or sister of an officer, director, or employee.

The fining committee’s sole job is to agree with or fully reject the board fine. The committee has no authority to alter the fine.

Some boards do not use fines because of statutory limitations. The amount that can be fined can seem small. Fining a tenant who will be moving out someday can seem a waste of time. Even fining an owner may seem little punishment. Fines are limited to $100 per occurrence. Each day of a continuing violation can be fined but not more than a total of $1,000.

Fines are not liens against the unit, so many owners ignore them. That can be expensive, as fines can be collected by lawsuit and in those lawsuits, the winner gets attorney fees as well. An owner with a fine can find the association refusing to approve sale of the unit unless the fine is paid.

Some associations have difficulty getting owners to serve on a fining committee. Our firm had one association that found it easier to get people on the board than on the fining committee, so board members resigned and were appointed to a fining committee with their board seats filled by appointment.

The association or any unit owner can also pursue legal action against an owner and /or tenant when the tenant violates association rules, association governing documents, or Florida’s Condominium Act. The prevailing party in that case gets attorney fees as part of any judgment, in addition to whatever the judge awards.

Sometimes associations do not pursue action involving unruly tenants because they think they have to start with arbitration or mediation required by Section 718.1255 Florida Statutes. That statute mandates pre-suit arbitration or mediation in certain condominium matters but has been interpreted as not applying to actions for restraining orders against tenants and, by extension, against unit owners for tenants violating rules.

A restraining order can prohibit continued lease to the problem tenant which effectively is an eviction. Perhaps more importantly, when an association fails to act, a unit owner can take action to stop the tenant and the other owner from the problem activity. The winner in that case also gets attorney fees.

The restraining order lawsuit can be a very powerful weapon to stop nuisance activity or even remove the tenant entirely.

Florida Statutes give associations another option to address the unruly tenant. An association can suspend right of the owner, tenant, and guests to use the common elements other than the common elements needed to access the unit, elevators, utilities, and parking. That may seem to be a powerful weapon. Tenants can be barred from the pool, party room, tennis and bocce ball court, and even the dock and boat lift.

The problem is enforcement. A tenant who is bad enough to warrant a ban on using the common elements is unlikely to comply with such a ban. That means someone has to stop the tenant trying to access recreational facilities. There is a great risk of physical altercation enforcing a ban on using recreational common elements, and that risk is so great few associations even try.

The unruly tenant is most often a continuing problem because nobody wants to spend money on an attorney to stop the problem. Failure to take action is likely a violation of a board’s duty. That means a unit owner may have to pursue action on his or her own against the offending tenant and owner. Good news is that winner in this case will also get attorney fees, so the cost of fixing the problem can be a lot less than one might expect.