A recent decision from Florida’s First District Court of Appeal serves as a friendly reminder that those who own common area in homeowners associations are not treated the same as ordinary property owners – at least not in eminent domain proceedings. In Leon County v. Lakeshore Gardens Homeowners’ Assoc. Inc., Leon County (“County”) sued the Lakeshore Gardens Homeowners’ Association (“Lakeshore HOA”) to acquire an easement over a portion of the common area in the Lakeshore Gardens neighborhood. The Lakeshore HOA moved to dismiss by claiming (in part) that, because it does not have authority to act on behalf of over 100 property owners in the Lakeshore Gardens community, those owners were indispensable parties to the lawsuit and should have been named individually. The trial court agreed and dismissed the County’s lawsuit. The County appealed.
The First District Court of Appeal reversed the trial court, finding that Florida Statutes and Florida Rules of Civil Procedure governing homeowners associations allow the Lakeshore HOA to appear on behalf of and represent the homeowners in eminent domain litigation. Specifically, the appellate court cited section 720.303, Florida Statutes, and Florida Rule of Civil Procedure 1.221, as permitting the Lakeshore HOA to “defend actions in eminent domain” without the need to name the 100+ owners of the common area.
Beware! The value of an individual owner’s home in an HOA could be substantially impacted by a government taking of common area (perhaps the taking eliminates the park or the pool that made the neighborhood more desirable to potential buyers?) and the homeowner may not even know that a takings lawsuit has been initiated. Or, it is possible that because the vast majority of the homeowners may be subject to little impact, the HOA gives the government taking short shrift even though one or two homeowners are greatly impacted. The Florida Constitution guarantees that every owner from which private property is taken is entitled to be fully compensated for its loss. Article X, Sec. 6. Fla. Const. But without being informed of the proposed taking, a homeowner cannot appear and defend its right to compensation, and there is no guarantee that an HOA will adequately or capably protect all homeowners’ interests. Moreover, even if a homeowner is alerted to the proposed loss of common area, such notice must be delivered within sufficient time for the homeowner to be able to make a difference. Homeowners at risk of losing common area should not rely on their HOAs to protect their property rights. Instead, they should remain on alert about potential impacts to their common area and, if uncertain about such impacts, consult with an eminent domain attorney to protect the value of their property.
