Sunday, April 20, 2014

Letter to Governor Rick Scott

Dear Governor Scott,

It was very disappointing to not have the bill this year to create an agency to regulate homeowner associations. 

Despite what the courts have ruled, a high percentage of these associations are dictatorships who widely abuse homeowners.  As my friend Scott Gardner said 'I doubt our founding fathers ever envisioned any private corporation having so much power over the citizens of this country."  Valuable property rights are gone. 

While the courts hold the position these people entered into a contract and they had a choice not to, this contract is one-sided. One-sided contracts are thrown out all the time. 

What people don't agree to in these contracts are to be ruled by boards who steal money or use the money for private vendettas. 

What these people don't agree to is being victimized by attorneys and community association managers who work I'm collusion to fuel disputes and billable hours. 

What these people do not agree to is having thousands of dollars of unregulated attorneys fees assessed against them if they are a couple days late with a payment or if their payment is lost.  

What these people don't agree to is being sued for exercising statutory rights such as implementing Florida Friendly Landscaping. 

These people entered into these contracts thinking if something went wrong the State of Florida would protect them.  The State has failed our citizens. 

The State of Florida has aided and abetted the creation of a system more corrupt than any government.  

Regards
Barbara Billiot Stage, Esq. 

Sent from my iPhone

Wednesday, April 16, 2014

Abuse of Power -- Living Miserably in a Florida Association

If I had to briefly describe Florida community associations (COAs, HOAs, Mobile Home Parks) I would sum it up to "abuse of power."  

A majority of the associations in the State of Florida abuse the power granted to them by the statutes and the governing documents (Declarations, Bylaws, Articles of Incorporation, and Rules and Regulations) of the association.  In the early to mid0-2000s, House Representative Julio Robaina, who was head of the House Select Committee on Condominium and HOA Reform set up town hall meetings all over the state to listen to the complaints by owners regarding their associations.  Hundreds of people attended these town hall meetings and only one or two people ever spoke up to say they were happy with their association.  As you can guess these one or two people were board members.

Don't get me wrong; there are a number of good associations out there who do their job without abusing the owners.  I know because the associations I represent operate their communities that way or I would not be representing them.

The problem lies with the association attorneys, as well as the courts and the Florida Bar for letting the association attorneys behave badly.  The problem lies with the Florida Legislature for not enacting more laws to protect the owners or creating an agency to properly regulate the associations.  Homeowner associations are not regulated at all.  The other types of associations that are regulated do not provide adequate protection for the owners or do not have jurisdiction to investigate the biggest problems, such as assessment disputes.  This means the only remedy available to homeowners is costly litigation and the attorneys know this.  They advise their clients the likelihood of someone litigating against the association is slim and even if they do chances are they will drop the case when they realize the money it will take, which is between $100,000 and $150,000 on average to get a case to court.  In fact one association law firm gave a  sales presentation that I sat in on and stated that 95% of the homeowners cannot afford to litigate against you. Their motto was "do now, defend later."  The board members, once educated on this fact, then start to abuse the power they have to suppress the property rights of the owners. 

Tactics include censorship of those outspoken owners and litigation against them if possible.  Associations will foreclose on an owner who is past due a few hundred dollars and is outspoken rather than foreclose on someone who owes more but doesn't make trouble.

Attorneys' fees are the biggest problem with association abuse.  The statutes actually provide for the owner to reimburse the association the attorneys' fees without a court action!  Even worse, any payments are applied to interest, late fees and attorneys' fees first.  Payments are applied to assessments last, so if you are past due, unless you pay the amount in full, you will always be at risk of foreclosure.  Knowing this, the law firms representing the associations pad their bills heavily.  A recent case I was involved in, where the association lost the client's monthly payment of $160 resulted in almost $800 the first month and $62.50 each month, minimum, just for handling an account in collections and processing the payment.  This client paid in advance several months at a time and there was only one month in dispute, but the association sold off the debt to a finance company who then applied hundreds of dollars in legal fees almost every month on top of the legal fees the association attorney charged.  The attorneys' fees reached $20,000 quickly despite one $160 payment being in dispute.

I have had clients who are turned over to the association attorney for collections and they are told they cannot go by the law firm and cannot call.  They are given the email address of a contact person to discuss settlement.  Guess what?  That person no longer works there and the owner is given two or three email addresses of former employees.  While I complained about this to the law firm several years ago, I recently discovered the firm is still engaging in this practice.  When they finally do read the emails the owner sent, they want to bill the owner for all the emails sent despite no one reading them when they were sent.

Violations are another area of abuse.  If your association doesn't like you, you will be targeted with violation notices and possibly fines, which then can be a lien and foreclosure on your home if the fines exceed $1,000 and are unpaid.

Life in an association does not have to be this way.  There is a better way of operating these associations, but until the State of Florida wises up and realizes they are promoting a "cash cow," not just for the attorneys, but for the community association managers, as well, life in an association will be a living hell with a dictatorship form of government.  By the way, the courts have ruled long ago associations are not governments or quasi-governments.

Sunday, April 13, 2014

Community Association Living - Notice Requirements for Board Meetings and Member Meetings

Very rarely is a statute clear enough to avoid debate by lawyers taking different positions. Even if the law seems to be clear, it will still generate lots of questions with lawyers taking different positions.  The notice requirements in Fla. Stat. 720.303(2)(c) are a good example.

This statute provides the Bylaws will determine the notice requirements and if they do not then the following apply....  The statute then goes on to state BOD meetings are to be posted 48 hours in advance of the meeting in a conspicuous place in the community.  Exceptions to this are meetings to "levy" assessments or to change rules governing parcel use, which require fourteen (14) days notice to the members by U.S. mail to their home address.

The confusion comes in because the statute reads:

"An assessment may not be levied at a board meeting unless the notice of the meeting includes a statement that assessments will be considered and the nature of the assessments. Written notice of any meeting at which special assessments will be considered or at which amendments to rules regarding parcel use will be considered must be mailed, delivered, or electronically transmitted to the members and parcel owners and posted conspicuously on the property or broadcast on closed-circuit cable television not less than 14 days before the meeting."

Breaking this down, you can see the confusion.  First, what is the meaning of "an assessment may not be levied.."  It is unbelievable how much you can debate if an increase to an existing assessment is levying an assessment.  My opinion is each year when you set the rate of assessments you are "levying" an assessment. The next issue is the second sentence states the fourteen (14) day written notice is required for "special assessments" and ignores regular assessments.

Leave it to the lawyers to muck it up, right?  Just use common sense!  Play it safe and use the fourteen (14) day notice.  If your Bylaws have a longer period (many have fifteen days), then use that.  Out of precaution, don't use less even if the Bylaws permit it.  Industry practice has been to use the fourteen (14) day notice as a guideline.  When in doubt, be conservative!

Tuesday, March 25, 2014

Victory for Homeowners! No Deed Restrictions!


Yesterday was a good day for the homeowners who scored a victory in their fight over deed restrictions in Bayhead Landings.  It was a tough battle with me, being the only attorney with my firm handling HOA cases, against Becker & Poliakoff.  For those of you who do not know B&P, they are the biggest association law firm in Florida.  

This battle was over deed restrictions which included a specific expiration date without any of the usual automatic renewals.  In order to extend the deed restrictions, 75% of the owners and mortgagees had to vote to amend the expiration date.

The issue in this case was the method for obtaining the approval.   For this community it meant just one method -- voting in person or by proxy at a meeting.  This was the method provided for in the bylaws. Additionally, Fla. Stat. 720.306(1)(a) states "Unless otherwise provided in this chapter or in the articles of incorporation or bylaws, decisions that require a vote of the members must be made by the concurrence of at least a majority of the voting interests present, in person or by proxy, at a meeting at which a quorum has been attained."

The HOA didn't follow these rules and instead collected ballots door-to-door.  Their argument was one we see a lot.  Fla. Stat. 617.0701, governing not-for-profit corporations, allows voting by written consent.  The problem is this conflicts with Fla. Stat. 720.306 and Fla. Stat. 617.1703 states in the event of a conflict with Chapter 720, Chapter 720 will prevail.

The funny thing is this case was not about not wanting deed restrictions.  My clients actually supported keeping the deed restrictions.  What they could not support was the way the HOA went about doing it.  It's pretty much a safe bet to say that if a HOA doesn't follow the rules and procedures for one issue, they tend to ignore the rules and procedures for dealing with other issues.  This wasn't about not wanting deed restrictions, but about playing by the rules.

Wednesday, March 5, 2014

How To Tell If You Bought Into A "Bad" HOA (Or Condo Association)


When potential clients tell me they think they made a mistake and bought into a "bad" HOA or COA, if it's a condo association, I tell them right away, without hearing their issues, they have a 95% chance they are thinking correctly.

So how do you tell if your association is "bad?"  Most of the time you can't tell until it's too late, but here are a few signs:

1.  The Declarations are more than 20 pages (sign of over regulation by the association);

2.  The Rules and Regulations have more restrictions than the Declarations (sign you have contracted away any constitutional property rights you think you have);

3. The association owns its own maintenance company, landscaping company, rental company, security company, or any other for-profit company (sign of corruption and/or fraud);

4. A board member is the community association manager (CAM), a.k.a. property manager, or any other paid position (sign of corruption and/or fraud plus harassment and bullying);

5. The board members' homes look nicer than everyone else's (sign the board are getting freebies from contractors, such as free landscaping);

6. Board decisions are made on an issue by simply voting with no discussion of the issue at the board meeting (sign the board is conducting business by closed meetings -- most likely email, which is a violation of Florida law);

7. Your board tells you that you will do as they say, when they say it (sign the board has a really nasty law firm representing them and you life as you know it is over. Welcome to Hell. This is otherwise referred to as a dictatorship if you could convince the State of Florida these really are quasi-governments. At this point items 1 - 5 probably apply.);

8. You're welcome to the neighborhood is loaded with F-bombs (I should have sold my home and moved then, which was three days after my move-in date). Oh yeah, this is a sign your board is made up of people who failed miserably at their careers and they get an ego boost by thinking they can intimidate you.

Thursday, February 6, 2014

Wonderful Websites for Homeowners


I just received notice of a posting recommending a good website for homeowners to obtain information. There are a number of websites for Florida homeowners on both the local level and the national level.  I recommend using a website call "Feedspot" (www.feedspot.com) to link all of these websites to one page and you can get updates by accessing this one website.

The one recommended was www.hoawarrior.com.

I also recommend www.avvo.com and search for legal opinions by "HOA" or "Condo." You can limit your search to Florida or leave the location blank and see what's going on in the rest of the country. Same thing, different place.

I also recommend www.ccfj.net, which is a Florida organization with lots of information and they report the latest court rulings.

For those fighting their HOA with Florida Friendly Landscaping, which is a right provided in the Florida statutes:  www.floridayards.org and https://fyn.ifas.ufl.edu/

Believe it or not some of the top association law firms distribute some of the best information. I don't always agree with their blogs, but they are  for the most part usually truthful.  After all if you don't know what the other side is saying, how are you going to fight to protect your rights?




More good websites (names are self-explanatory):

http://blogs.sun-sentinel.com/condoblog/





Saturday, January 18, 2014

Associations -- There is a Better Way!


It's no secret I have been an advocate for homeowners embroiled in disputes with their associations.  I originally went to law school to practice employment law.  I changed directions when I bought my home in a HOA and my welcome to the neighborhood consisted of a volley of "f-bombs" from someone claiming to be the HOA president.

In the past couple of years I have changed direction in my practice of community association law.  Not only did I realize individual owners suing an association is difficult for my clients, both emotionally and financially, but creates a hostile environment for everyone that often lingers even after the dispute is resolved. I now focus my attention on representing the associations.  I figure I can make a difference by helping associations proactively avoid litigation rather than helping the owners litigate.  Not all disputes can avoid litigation. There will always be those one or two homeowners in every community that will be stubborn or even aggressive and want to fight, but litigation should be a last resort.

Let's face it -- if your association has a bad reputation it will affect property values and the resale of homes. Desirable associations attract home buyers.

The ingredients for a good association are education, communication, the right CAM and the right lawyer.

Most homeowners do not intentionally violate the covenants.  Just because the homeowner received a copy of the governing documents, doesn't mean they understand them.  If they did, most members who are past due in their assessments would realize the association can lien and foreclose on their home and would keep the assessments current.  I come across homeowners every day who believe if the bank is foreclosing the association cannot foreclose.  They are surprised when their homes are sold by the association with a bank foreclosure pending.

There is a simple fix to this.  The association should have a website the provisions of the governing documents can be explained, broken down in individual topics, and then promote this website regularly. Make sure new owners receive the web address right away.  Encourage members to review the website before undertaking improvements to property.  There are a number of services out there which help those technology-challenged individuals build a website.  If a website isn't feasible, create a newsletter!  Now you have education and communication!

Another point about communications -- confrontational notices do not work.  It is human nature to become defensive when being harshly reprimanded.  I believe the first notice to a homeowner should be a gentle reminder and an invitation to discuss the issue at a meeting if necessary.  The old saying "you catch more flies with honey" is true. You will get more owner cooperation if you acknowledge they either did not know better or forgot and have a chance to remedy the situation.  Threatening to send them to the association lawyer if they do not obey demands only ends up costing the association and owners more money for legal fees.

The right CAM is important.  Identifying the right CAM is not so easy and there is no one size fits all.  Some associations need the CAM to be very involved and some only need a CAM to collect assessments, pay bills and send out violation notices.  The right CAM will meet your expectations and work well with the association.  The wrong CAM will partner with the lawyer to increase billable hours for both of them by fueling disputes.  The wrong CAM will control the association funds and keep board members out of financial decisions.  The wrong CAM will make board decisions without the board members being involved. The wrong CAM will think it's their job to run the association, not the board.  

The same applies to the lawyers.  The right lawyer will answer the board's questions and encourage the resolution of disputes early.  The wrong lawyer will lead the board to believe they have the ultimate power and cannot lose a dispute. The wrong lawyer will bully and abuse homeowners.

Associations should be proactive when dealing with violations and collections.  Identify the problem areas and work on them proactively.  Make sure your owners know not paying assessments means they risk losing their home and usually quickly.  Let them know the association doesn't want their home, but has a duty to collect assessments from everyone.  Let them know financial hardship is not a defense the courts will entertain.  Offer a payment plan to help out those who are already past due, but be aware that if the association lawyer handles the payment there are outrageous fees to set it up and process payments.  The association can facilitate the payment plan so it stands a better chance of success.  If your association has authority to impose fines, make sure the members know about the process and don't try to rig it by appointing members to the fining committee who are friends and supporters of the board or biased against the owner.  Make it a fair hearing before the fining committee or the association will most likely end up in litigation.  Make sure all members are aware of the process for applying for approval to implement improvements to their property.  Communicate on a regular basis those items that require approval as well as those that do not.  

There is a better way to have an association and not make everyone in it miserable.  It's not easy because most members of the association don't care to be involved or hear about it, but it is possible.