Q. Our HOA is at odds with a homeowner about a screen enclosure that was added to the back of the home without approval from the association. The homeowner refuses to remove the unapproved structure. Our attorney has recommended that we demand pre-suit mediation with the homeowner, however we are concerned that if we make a deal with the homeowner that it could impact our ability to enforce the rules against other homeowners in the future. What are your thoughts on this?
A. Based on your question, pre-suit mediation would be the correct way to resolve this dispute. Pursuant to Florida Statutes Section 720.311, “disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes…shall be the subject of a demand for pre-suit mediation served by an aggrieved party before the dispute is filed in court.” In plain English, this means that your association cannot file a lawsuit to have the screen enclosure removed until it first demands that the homeowner participate in mediation. If the homeowner refuses after receiving the demand, the association can then file suit to correct the violation and also recover its attorney’s fees and court costs. Further, the association should not be concerned about the results of the mediation having any impact on future violations. There is a statute in Florida that prohibits a party from discussing any concessions, admissions or “deals” made at mediation. Perhaps the association might negotiate a deal where the homeowner is allowed to keep the structure and simply pays a fine and some of the association’s attorney’s fees. Thus, if the association believes that it makes business sense to resolve the case at mediation, that decision will not in all likelihood compromise the association’s position in future violation cases.