CIRCUMVENTING FLORIDA LAWS?

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published September 15, 2008

Since the year 2004 we have seen attempts by attorneys and power-hungry boards to circumvent a provision in FS 720 (Homeowners' Associations) that finally stopped dictatorial fining practices used by power-hungry boards: "A fine shall not become a lien against a parcel. In any action to recover a fine, the prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court." [FS 720.305(2)]

The HOA TASK FORCE created by Governor Jeb Bush added this provision into the HOA statutes after hearing lots of testimony from outraged homeowners. Those homeowners provided testimony and documents showing that allowing liens and foreclosures for "fines" had been abused and served often as a tool to silence so-called "disgruntled" homeowners when they dared to speak up against methods of certain board members, association managers and attorneys.

Since a few attempts to change the mind of legislators and sneaking this detrimental provision back into the statutes failed (latest attempt H679 sponsored by Representative Andy Gardiner), boards and their attorneys are trying to circumvent these provisions that were clearly created to protect homeowners against abuse. We have seen attempts to amend bylaws saying that "unpaid fines" turn into unpaid assessments if unpaid for longer than 30 days. Then the lien and foreclosure process stated that this was an unpaid assessment.

But since these attempts to collect unjust fines failed, attorneys who really liked this source of easy income got even bolder with their attempts to circumvent the Florida statutes.

According to owners, the board of the MANOR FOREST HOMEOWNERS ASSOCIATION, INC. in Boynton Beach attempted to push an amendment that was worded by the law firm of Dicker, Krivok & Stoloff, P.A.

Item: 1 There shall be a new paragraph added to Article VIII(F) of the aforesaid Declaration which shall read as follows:

Not withstanding anything stated to the contrary herein, the violating Unit Owner shall be responsible for the attorney fees incurred by the Association, regardless of whether a lawsuit or other legal proceeding has been filed. In the event such attorney fees are not paid by the violating Owner, the attorney fees shall be deemed an assessment, and collectible in the same manner as an assessment.

This amendment is a blatant attempt to circumvent provisions created by the Florida Legislature to protect consumers against power-hungry boards and greedy attorneys.

It's even worse when the reason for this "much needed amendment" is sold to unsuspecting homeowners by twisting facts and using scare tactics. This was the official explanation trying to convince neighbors to vote YES: "We have had too many instances where it had been necessary for the Homeowners Association to utilize the services of our attorney in order to settle a document violation problem only to end up finally collecting the violation fee but having to eat the attorneys fees -- due to wording of our present documents. This proposed amendment ensures that the Association will also be reimbursed for any and all related attorney fees. Let the violator pay ... We ask you to please vote YES on this item."

But a board member, signing as "YOUR NEIGHBOR", went even further in a letter, slandering the attempts of opposing homeowners, stating: "PLEASE VOTE YES!!! The association can be Special Assessed for legal fees that are above our yearly budget if we vote NO... Please listen to the facts and not some cheap quotes pasted on a letter from the "FHCC" (Fox Hollow Citizens Coalition)."

I didn't know that wording from the Florida Statutes should be considered “cheap quotes.” Don't forget, this amendment is trying to circumvent Florida law, not some measly bylaws of a homeowners’ association.

Never forget, the special assessments for legal fees are normally caused by frivolous lawsuits filed by boards against homeowners -- or the inventive interpretation of the governing documents, like in the case of the JUPITER FLAG MAN, a lawsuit that started because of the interpretation that a flagpole is a "lawn ornament." Or trying to interpret the word "commercial vehicle"? This attempt has cost the owners of the TURTLE CREEK HOMEOWNERS' ASSOCIATION, INC. in Orlando a bundle! There is a long list of cases -- all of them costly for the owners due to the stupidity of board members falling for the interpretation of the so-called professionals. Don't forget: Attorneys get paid -- WIN or LOSE!

The statutes clearly say: "Prevailing party is entitled to collect its reasonable attorney's fees and costs from the nonprevailing party as determined by the court."

So, if the association can't collect attorney's fees, it was clearly NOT THE PREVAILING PARTY!

But these tactics circumventing Florida laws are not just limited to homeowners’ associations. The law firm of Robert Kaye & Associates P.A. filed on February 26, 2007 this amendment in the Palm Beach courthouse for the BOCA GLADES "D" CONDOMINIUM ASSOCIATION, INC.:

E. This remedy for violation provided by the Condominium Act shall be in full force and effect. In addition thereto, should the Association find it necessary to institute legal proceedings, upon finding by a court in favor of the Association, the defendant unit owner shall reimburse the Association for its costs of suit, including reasonable attorney's fees at both trial and appellate level, incurred by it in bringing such action.
So far so good, but now read the amended part:
Notwithstanding anything to the contrary contained herein, in the event that the association is required to engage the services of an attorney to seek enforcement of the provisions of this Declaration, the Articles of Incorporation, the By-Laws and the Rules of the Association, and the Unit Owner of the Unit complies with the requirements subsequent to attorney involvement, the Association shall be entitled to reimbursement of its costs and attorney's fees so incurred from the Unit Owner of the Unit, regardless of whether litigation is necessary for the enforcement. The costs and attorney's fees so incurred shall be deemed to be a special assessment against the Unit and shall be collectible in the same fashion as any other assessment as provided in Article 13 hereunder.

We are always making fun of justice in Third World countries. Please note: This happens in the State of Florida , where we reside. This amendment doesn't even require the association to go through the fining process. If the board considers a unit owner a nuisance, one call to the Kaye law firm will take care of punishing this unit owner. Have the law firm write an "expensive" letter and -- right or wrong -- the unit owner is stuck with the cost of this letter. And if the unit owner does not immediately send payment in the amount demanded, he/she will get a letter threatening to take the home away by means of lien and foreclosure -- adding even more attorney’s fees!

In other civilized countries people call this extortion or black mail. There is not even a semblance of due process and/or fairness. Even if these "amendments" may not stand up in court, the lack of enforcement by the justice system allows greedy attorneys and dictatorial board members to use these intimidation tactics. In my opinion, attorneys lending a hand to these methods shouldn't have a license to practice law in this country, where the Pledge of Allegiance ends with the words: "... and justice for all."

Gee, I know that I will get lots of e-mails saying: "Oh, these owners are free to vote NO on any proposed amendment!"

True, but don't ever forget, most owners just wanted to buy a home for their family, not a lesson in sneaky legal maneuvers of power-hungry, dictatorial boards and their greedy attorneys!

We have a Florida Supreme Court preventing us citizens from voting on important ballot items, claiming we citizens are too stupid to read the actual meaning of the ballot proposals.

Where is the entity that warns owners not to vote for amendments to the association's governing documents, especially when these amendments are sold to owners under false pretenses and serious financial threats?