What can an association do? The answer to the question is normally found in the association's "governing documents". If the governing documents require approval of alterations, then associations may demand that owners remove unapproved improvements. However, associations utilizing self-help to remove owner-installed improvements may be asking for trouble.

The prospect of litigation is not appealing to most persons. Condominium and cooperative associations have the option of proceeding with arbitration. Though not anticipated, frequently condominium and cooperative arbitration is many times as long and is more expensive than proceeding in Circuit Court.

Thus, as an initial step, unless there is an emergency immediately threatening health or substantial property damage, the firm almost always suggests that an association first contact the violator. If a tenant is the cause, then the owner should be notified of the situation and the owner's responsibility to cure the violation. Many times a courteous initial effort will result in a prompt correction. Only when the association's reasonable efforts fail is resort to counsel suggested.

This conclusion finds support in a recent Florida appellate court decision, Burr v. Norris, 21 Fla. L. Weekly D278 (Fla. 2d DCA, January 24, 1996). In this case, Burr agreed to buy a "fixer-upper" house from Abraham. The parties quickly agreed on financing terms and scheduled the closing.

Burr took possession of the house and made major repairs. Unknown to Burr, Abraham previously borrowed money from Norris, who held a mortgage on the house. Before the closing with Burr, Abraham defaulted on his loan to Norris. Abraham executed a deed to Norris to avoid foreclosure.

Without going to court, Norris took steps which led to Burr leaving the house. Thereafter, Burr sued Norris, alleging among other things a count for civil theft pursuant to §772.11 Fla. Stat. (1991), seeking treble damages for the value of the labor and material expended by Burr in making the improvements Burr was forced to leave behind when he moved out of the house and which Abraham kept. When the case appeared before the trial judge, the judge ruled against Burr on his civil theft action.

The appellate court, however, reversed the trial court's decision. The appellate court noted that the law did not expressly exclude fixtures, such as the home improvements, from being the subject of a civil theft claim. Thus, the Burr case stands for the proposition that though a person may believe they are right in forcing a change to real property, if wrong, compensatory and treble damages may be awarded.

What does this mean for associations? An association which uses self-help and removes owner-installed improvements on the owner's property may face a claim from the owner under the civil theft statute. If the owner prevails, then the association may be liable for treble damages for the value of the labor and material expended by the owner in installing the improvement.

Of further importance is another earlier Florida appellate decision that there is no insurance coverage for an award of treble damages for civil theft. Country Manors Association, Inc. v. Master Antenna Systems, Inc., 534 So. 2d 1187, 1195 (Fla. 4th DCA 1988). The Court stated that treble damages are in the nature of a penalty and are never insurable by reason of public policy. 534 So. 2d at 1195. Thus, officers and directors' and general liability insurance policies may not provide coverage if an owner is awarded damages under the civil theft statute. In addition, directors may even be personally liable for civil theft damages and punitive damages.

As a practical matter this bill will require associations to keep all late paying owners envelopes. Additionally, the bill will require associations to re-consider due dates and how payments are posted. This will raise bookkeeping and accounting costs considerably.