Q: My homeowners’ association recently sent me a notice stating that I had to remove a number of tree stumps in my back yard. The stumps are from trees that were removed following Hurricane Irma. Nothing has changed since those trees were cut down over five years ago. I don’t understand why my association is bringing this issue up now. Isn’t there an outside limit on how long the association can wait to deal with something like this? (R.V., via e-mail)
A: Legal time limits regulating when actions can be brought against another party are known as the statute of limitations. Chapter 95 of the Florida Statutes contains the general statute of limitations laws in Florida.
The general statute of limitations in Florida for legal wrongs, generally known as “torts,” as well as violations of statutes is 4 years, while the statute on “contracts” is 5 years. That is a very general statement and there are many exceptions and legal interpretations.
The Florida courts have held that legal claims based on enforcing community association documents carry a 5-year statute of limitations based on the “contract” provisions of the statute. However, the statute of limitations does not begin to run until the “cause of action accrues,” which is a matter of significant legal debate in many lawsuits.
It is also important to understand that certain types of violations in the community association setting can reasonably be characterized as “ongoing” violations, meaning that there is basically no statute of limitations against the association taking legal action. Many “nuisance” type claims fall into that category, and I would expect that to be an argument your association would make if things came to that.
Q: Can you please explain the difference between common elements and association property in condominiums? (J.K., via e-mail)
A: Practically, it is usually a distinction without a difference, though that is not always the case.
The common elements are property subjected to condominium ownership by the declaration of condominium and not included within the units. The roof of a multi-story building is usually a common element. Every condominium (at least each one that I know of) has common elements. Legal title is held by the unit owners in “undivided shares” as “tenants in common.”
Association property is property where title is held by the association, rather than the unit owners as tenants in common. Most associations own some kind of personal property (such as pool furniture) which is technically association property. Most associations do not own land in the association’s name, it is usually held as common elements.
By and large, the statute attempts to treat common elements and association property that is real property the same. The rule on “material alterations” is one example; both common elements and association real property are treated the same. Permissible places for the posting of association notices is another example where the two types of property are treated the same.
The most significant difference between the two is that association real property can generally be sold with 75 percent approval of the members, unless the declaration contains a different requirement. Conversely, common elements generally cannot be sold without approval of all owners since they hold the legal title to it and would be required to sign a deed or other instrument to convey legal title.
Due to a typographical error which I missed, my February 4, 2024 column requires correction. Chapter 617.0802 of the Florida Not-For-Profit Corporation Act does not require a person desiring to run for a community association board to be a member of the organization. Requirements for membership as a condition of board eligibility must be contained in the governing documents for the community.