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The Law Offices of Robin Bresky Boca Raton & West Palm Beach Appellate Attorney
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Fourth DCA Affirms Judgment for Homeowners Association Where Enforcement of Declaration Left to Association’s Discretion

Heath v. Bear Island Homeowners Association, Inc.
Case No. 4D10-3779

The Fourth District Court of Appeal (“DCA”) reviewed a trial court’s final judgment in favor of the defendant homeowners association (“HOA”) and the HOA’s board member. Heath, the plaintiff, had filed suit against the defendants for injunctive relief to compel them to enforce the terms of the HOA’s Declaration of Covenants and Restrictions. Heath alleged that the HOA did not enforce the terms of the Declaration as to certain homeowners with regards to homeowners making changes, improvements, or modifications without HOA approval.

On appeal, the Fourth DCA examined the language of the Declaration at issue, noting that the language specifically provided that “[t]he Developer, the Association, or any individual may, but shall not be required to, seek enforcement of the Declaration.” The Fourth DCA concluded that the language meant that enforcement of the Declaration by the HOA was purely in the HOA’s discretion, so that Heath did not have a clear legal right to an injunction to compel enforcement. Murtagh v. Hurley, 40 So. 3d 62, 66 (Fla. 2d DCA 2010). The Fourth DCA pointed out that the trial court had found in favor of the defendants for a different reason, but had still reached the correct result.


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