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Selective Enforcement of HOA Byalws and Violation of Implied Warranty of Habitability

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me39cu

Junior Member
What is the name of your state (only U.S. law)? Florida

Last month on a Friday my apartment kitchen flooded (I am a renter and my girlfriend Jen is on the lease with me) while I was away due to backflow from my kitchen sink caused by buildup in the plumbing stack that runs through my kitchen and the kitchens in the ten units above me. Jen and I were away visiting family about an hour away when the flooding occurred. The flooding was finally noticed when Jen’s brother Jim, who was staying with us, came home. After Jim notified Jen and I, we called the HOA president Bob since the maintenance person was away for the weekend. We thought the situation was being handled, so we decided to sleep over at my family's place and return the next day. When we returned to the apartment on Saturday, the HOA president, his wife and a plumber were in my apartment "dealing" with the mess by running an industrial dryer and cleaning the plumbing stack. They had failed to clean up any of the sludge from the floor, remove any of the appliances or baseboards that the filthy water had seeped underneath. We asked Bob when he was going to clean up the mess, he said on Monday when the building maintenance man and janitor were working. We explained that this was unacceptable since the kitchen was filthy and covered in toxic material and the entire apartment smelled. He said to take it up with our landlord. We explained that a building problem caused the flooding and the damage, and it was the HOA's responsibility to clean up the mess. This led to an argument, which Bob's wife decided to get involved in, and I ended up losing my temper and cursing at Bob's wife (not excusable, but you can imagine my frustration at the time - oh I forgot to mention that we had a backflow problem three months prior to this incident, but I was home at the time and prevented any flooding from occurring). Bob and his wife stormed out of our apartment and we were left to handle the mess ourselves. In hindsight, Jen and I should have called a cleaning service or stayed at a hotel until Monday and billed the HOA, but Jen and I were not looking to deal with recouping our costs, so we spent over five hours that weekend cleaning up the kitchen. A few days later, we got a letter from the HOA telling us to remove our kayaks from the garage. We had kept Jim's kayak in our garage for the past two months since we lived on the beach and he didn't, and our kayak, which we had purchased a couple of weeks before the flooding occurred. It was clear that the HOA president was retaliating at me for cursing at his wife since we had never received a prior complaint about our kayaks even though at least one of the kayaks had been in the garage for over two months. The condo bylaws do state that boats are not allowed in the garage, but there are at least five other vehicles in the garage and the outdoor parking area that have been there since we moved into the building over a year ago that are explicitly prohibited in the bylaws. Jen did a little research and discovered multiple incidents of tenants winning cases against HOAs in Florida for selective enforcement of HOA bylaws. We responded to the HOA indicating that we would take legal action against them for violating the Implied Warranty of Habitability and for our time spent cleaning up the mess unless they assured us that they would not take any further action on the kayak. They responded with a letter from their lawyer by saying we would still have to remove the kayak, and that Jim, who has been staying with us off and on since he broke up with his girlfriend he had been living with, could no longer stay with us and had to leave our apartment in a couple of weeks. They cited two bylaws regarding subleasing. Since Jim is not subleasing my apartment, the HOA's threat is an empty threat. Further, the HOA bylaws state that a resident is defined as someone who stays in a unit for 14 consecutive days. Jim has never stayed at my place for 14 consecutive days, so he is a guest, not a resident, and the HOA can't take action against Jen, Jim or me. It is clear that the HOA president and his wife are using their power to try to retaliate against me for personal reasons and cannot be reasoned with. Therefore, I believe that I have no choice but to sue them. Further, I believe that there are costs associated with Jen's time and my time spent cleaning the mess, as well as associated emotional distress costs, that we are entitled to. At this time Jen and I plan on pursuing our case in small claims court. Please advise.
 


TheGeekess

Keeper of the Kraken
What is the name of your state (only U.S. law)? Florida

Last month on a Friday my apartment kitchen flooded (I am a renter and my girlfriend Jen is on the lease with me) while I was away due to backflow from my kitchen sink caused by buildup in the plumbing stack that runs through my kitchen and the kitchens in the ten units above me. Jen and I were away visiting family about an hour away when the flooding occurred. The flooding was finally noticed when Jen’s brother Jim, who was staying with us, came home. After Jim notified Jen and I, we called the HOA president Bob since the maintenance person was away for the weekend. We thought the situation was being handled, so we decided to sleep over at my family's place and return the next day. When we returned to the apartment on Saturday, the HOA president, his wife and a plumber were in my apartment "dealing" with the mess by running an industrial dryer and cleaning the plumbing stack. They had failed to clean up any of the sludge from the floor, remove any of the appliances or baseboards that the filthy water had seeped underneath. We asked Bob when he was going to clean up the mess, he said on Monday when the building maintenance man and janitor were working. We explained that this was unacceptable since the kitchen was filthy and covered in toxic material and the entire apartment smelled. He said to take it up with our landlord. We explained that a building problem caused the flooding and the damage, and it was the HOA's responsibility to clean up the mess. This led to an argument, which Bob's wife decided to get involved in, and I ended up losing my temper and cursing at Bob's wife (not excusable, but you can imagine my frustration at the time - oh I forgot to mention that we had a backflow problem three months prior to this incident, but I was home at the time and prevented any flooding from occurring). Bob and his wife stormed out of our apartment and we were left to handle the mess ourselves. In hindsight, Jen and I should have called a cleaning service or stayed at a hotel until Monday and billed the HOA, but Jen and I were not looking to deal with recouping our costs, so we spent over five hours that weekend cleaning up the kitchen. A few days later, we got a letter from the HOA telling us to remove our kayaks from the garage. We had kept Jim's kayak in our garage for the past two months since we lived on the beach and he didn't, and our kayak, which we had purchased a couple of weeks before the flooding occurred. It was clear that the HOA president was retaliating at me for cursing at his wife since we had never received a prior complaint about our kayaks even though at least one of the kayaks had been in the garage for over two months. The condo bylaws do state that boats are not allowed in the garage, but there are at least five other vehicles in the garage and the outdoor parking area that have been there since we moved into the building over a year ago that are explicitly prohibited in the bylaws. Jen did a little research and discovered multiple incidents of tenants winning cases against HOAs in Florida for selective enforcement of HOA bylaws. We responded to the HOA indicating that we would take legal action against them for violating the Implied Warranty of Habitability and for our time spent cleaning up the mess unless they assured us that they would not take any further action on the kayak. They responded with a letter from their lawyer by saying we would still have to remove the kayak, and that Jim, who has been staying with us off and on since he broke up with his girlfriend he had been living with, could no longer stay with us and had to leave our apartment in a couple of weeks. They cited two bylaws regarding subleasing. Since Jim is not subleasing my apartment, the HOA's threat is an empty threat. Further, the HOA bylaws state that a resident is defined as someone who stays in a unit for 14 consecutive days. Jim has never stayed at my place for 14 consecutive days, so he is a guest, not a resident, and the HOA can't take action against Jen, Jim or me. It is clear that the HOA president and his wife are using their power to try to retaliate against me for personal reasons and cannot be reasoned with. Therefore, I believe that I have no choice but to sue them. Further, I believe that there are costs associated with Jen's time and my time spent cleaning the mess, as well as associated emotional distress costs, that we are entitled to. At this time Jen and I plan on pursuing our case in small claims court. Please advise.
Paragraphs and white space are your friends. :cool:
 

festival

Member
Regarding the water damage, you would have to show that the association was negligent, which will not be easy. Just because they are responsible for maintaining the pipe does not mean that they caused this problem. When there is no negligence, then the association usually does not have to pay for damages, and each entity pays for damage to their own area.

This is just one issue where you may lose in court.

I would move the kayak out unless there are other kayaks in the garage.

Write to the association explaining your guest Jim.
 

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