John C. Goede

Special to TCPalm

Editor's note: Attorneys at Goede, Adamczyk, DeBoest & Cross, PLLC respond to questions about Florida community association law. The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, litigation, estate planning and business law.

Q: An owner in our condominium has an aggressive dog. We do not know the exact breed, but it has aggressively charged a number of residents, bitten other dogs on multiple occasions, and bitten a resident once and requiring the owner to get stitches. The owner denies all of the aggressive incidents. What can be done?

—T.W., Boynton Beach

A: First, the association and the injured owner should contact the local animal control service and file a complaint. Arguably, if the association is aware of a dangerous condition, the association needs to take some action. This may be in the form of a demand letter, fines, injunctive relief, or filing a complaint with animal control.

If this is the first time the dog has bit a person, animal control may only issue a warning depending on the severity and viciousness of the other charges and animal attacks. Some animal control departments are very proactive to remove dangerous dogs and others are very passive to remove dangerous dogs, so it is unknown whether a complaint will work. Nevertheless, the record should be created.

Next, you should have the covenants reviewed by a licensed Florida attorney. Some condominium documents provide very broad discretion in favor of the Board to determine that an animal is dangerous and require its removal.

Other documents provide a different standard or are silent on dangerous animals. If the covenants provide broad discretion to the Board, the Association could consider filing a court action for emergency injunctive relief to remove the dog. If this is not an emergency, then you may need to pursue injunctive relief in arbitration with the Florida Division of Condominiums. Either way, you should consult with an attorney to consider your options.

The bottom line is that if an attack occurs on common elements, the injured party will look to the association for damages, so it is important to take some proactive measure when there is a dangerous animal. Each situation is different, so the actual measure to protect the association’s interests will be different in each situation.

Q: Our homeowners association was created in 2013 after the real estate market recovered and the developer is getting ready to turn over control of the association to the members. The developer is telling us that it has not performed a financial audit and does not intend to do so because the covenants do not require an audit. I was told different. Is the developer required to give us an audit?

—P.R., Treasure Coast

A: The developer is required to provide a financial audit.

This is an interesting topic because older homeowners associations are not be required to provide an audit. This is because the statute did not require a financial audit at turnover until 2007. Some communities created prior to the 2007 argue that they are not required to provide a financial audit at turnover unless the covenants specifically require it to do so.

The legal argument, which has merit, is that the legislature cannot require the developer to do something in 2007 when the turnover rights were vested in the written covenants before 2007. This is also mirrored in the statute because the section on turnover audits specifically states that “this paragraph applies to associations with a date of incorporation after December 31, 2007.”

That being said, if your community was created in 2013, the statute on that date required the developer to provide an audit. Specifically, Florida Statutes section 720.307 states that the pre-turnover financial records “shall be audited by an independent certified public accountant for the period from the incorporation of the association or from the period covered by the last audit, if an audit has been performed for each fiscal year since incorporation.”

I would recommend you have your covenants reviewed by a licensed Florida licensed attorney to determine the actual date of incorporation and whether the covenants expressly require the developer to provide a financial audit. If the date of incorporation is after 2007 (you indicated it was) then there should be no question that a financial audit is required.

John C. Goede Esq. is co-founder and shareholder of the Law firm Goede, Adamczyk, DeBoest & Cross, PLLC. Please visit our website www.gadclaw.com. Or, to ask questions about your issues for future columns send your inquiry to question@gadclaw.com. The information provided herein is for informational purposes only and should not be construed as legal advice.

The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.