STIPULATION OF PARTIES? WHO CARES?
ANOTHER ELECTION DISPUTE IN BRENTWOOD HILLS HOA
Opinion By Jan Bergemann
Published May 21, 2011
Emotions ran high in the Brentwood Hills Homeowners' Association in Valrico in 2006, caused by the annual meeting with elections -- or the lack thereof. A lawsuit was filed in the Hillsborough Circuit Court -- and mediation was conducted by the DBPR. After spending lots of money in legal fees, both parties believed it to be in their best interests to seek a "negotiated compromise."
Finally, on March 30, 2006 both parties signed a STIPULATION OF THE PARTIES. In this stipulation it was agreed upon that the homeowner, who had brought the legal action, was appointed to two offices within the Association: Chair of the ad hoc Association Documents Review Committee; and Membership on the Association's Fines and Suspensions Committee.
Furthermore, both parties agreed that: "4. The Association will amend its election procedures to one that is substantially the same as the election procedure found in Chapter 718, Fla. Stat."
So far, so good. All parties went their merry ways, paid their own legal fees and hoped that the dispute was settled. That was until attorney Ellen Hirsch de Haan from the law firm of Becker & Poliakoff P.A. wrote on September 5, 2006 a letter to homeowner Lewis Laricchia trying to twist some of the issues Laricchia thought were settled by the stipulation. In the LETTER de Haan claims that the Board of Directors cannot appoint a "fining and suspension" committee, because "the Governing Documents for Brentwood Hills, as originally recorded, do not contain the authority to levy a fine or to suspend an owner's common area use rights." Sounds about right, but is actually a pretty shallow excuse to avoid following the provisions in the stipulation -- since the association is -- and has been -- levying fines and is suspending common area use rights all the time -- without a committee as required by the statutes.
Or how about this response in regard to a request for the minutes of the annual meeting: "Minutes of annual meetings are not Official Records of the Association until they have been approved by the Membership at the next members' meeting. When the Minutes have been approved, a copy will be available to you. Proxies and names of attending members are not Official Records under Section 720.303(4), and are not kept by the Association."
What does that mean? Can't get the minutes until these minutes are approved at the next annual meeting -- about one year later? And since all election records -- which should be part of the records of the annual meeting -- are only required to be kept for one year, no homeowner ever has the chance to control the election results -- or to see if there was even a quorum present? In my opinion that's an interpretation appreciated by everybody who has something to hide.
But then the association board, true to the stipulation, enacted on October 26, 2006 new election regulations:
These new procedures enacted contain the all important sentence with the magic words: "The election shall be by secret ballot however, if the number of vacancies equals or exceeds the number of candidates, no election is required."
Here is the wording of FS 718.112(2)(d) 3.a. Notwithstanding this sub-subparagraph, an election is not required unless more candidates file notices of intent to run or are nominated than board vacancies exist. More or less the same, considering that the agreement in the STIPULATION stated that the language should be substantially the same as the election procedure found in Chapter 718.
And that is exactly the bone of contention that is creating the new argument that pits neighbors against neighbors, because this part of the stipulation and the procedures were clearly violated in an election that took place on March 21, 2011 -- an election that shouldn't have taken place in the first place -- since there were no more candidates than open seats. In other words: The candidates, who officially filed the required written notice 40 days before the scheduled election, should have been seated without any delay -- as stated in FS 718 and according to the Brentwood Hills election policy and procedures.
But, as it is pretty common in Florida's homeowners' associations, agreements and stipulations, even policies enacted by the board of directors, are only good if they serve the people in power -- the people who think they have the power to disregard stipulations, statutes, contracts and other agreements. As of today -- two months after the election was scheduled and the day these two candidates should have been seated on the board of the Brentwood Hills Homeowners' Association -- the board still refuses to seat these candidates -- and the next legal battle is on.
More wasted money at a time when money is scarce.
It's always easy to fight for staying in power as long as you can use other people's money to finance the fight -- at the expense of all homeowners owning property in this community. Another HOA acting like a Banana Republic located in Florida.