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ANALYSIS OF HOUSE BILL H 27 -- Representative Kevin Ambler Proposed Changes to FS 720 -- Homeowners' Associations |
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An
Opinion By Jan Bergemann Published March 15, 2009
With all due respect, but this is the worst bill that has been filed in regards to mandatory homeowners’ associations in the last few years. And I honestly have to wonder about the motives of Representative Ambler to file this bill. He was last year a member of the House Select Committee and heard the testimony and complaints from owners all over the state. This bill would just achieve the opposite of what all these owners were asking for.
It
will put HOA statutes back in the "Dark Ages", in the times
before Governor Jeb Bush's HOA TASK FORCE and Senator Jeff Atwater's bill S
1184.
This bill was a huge step in the right direction, unlike H
27,
which would seriously turn back the clock on progress! The so-called Home
Court Advantage Dispute Resolution Act
should quickly be renamed into Attorney
Full Employment Act. Everybody dealing with these issues knows that
FS 720.311 – Pre-Suit Mediation – was a total failure. H
27 even wants to add non-binding arbitration –
adding even more cost to the already outrageously expensive process. And
the arbitrators will not be mediators knowledgeable in HOA issues. HOA
statutes are very specialized issues. Many judges and attorneys are not
very familiar with its provisions. Pre-suit mediation had a very low
success rate. Mediation only works if all parties come to the table in
good faith. That’s often not the case in HOA disputes. Since families’
homes are at stake, fights are very emotional and attorneys often abuse
this process to keep the billing clock ticking. In short: Anything but a
regulatory agency with enforcement power
will only cost
homeowners more money. Money they don’t have any more. Please consider
our economy. The failed system of
pre-suit mediation has already cost Some
other “Highlights” of the bill:
FS
720.303(5) INSPECTION AND COPYING OF RECORDS Line
331 – 333: costs involving personnel fees
and charges at an hourly rate for employee
time to cover administrative costs to the association.
This
sentence would allow a board or a manager to charge easily $50 for 2 pages
of minutes. This will stop every owner from demanding records! It’s cost
prohibitive! The hearings of the Select Committee showed that easy access
to records is one of the most important issues! FS
720.303(12) While the headline of this provision says one thing: (12) COMPENSATION
PROHIBITED, the language later opens the door for outrageous
abuse: Line 494-495: (d) Any
fee or compensation authorized in the governing documents.
Since bylaws can be changed by simple vote of the board, any board could
legally reward themselves with a huge compensation – totally legal
according to this bill proposal! And
here is the opening for dictatorial abuse: Any
fine levied – right or wrong
-- for $1,000 or more can be enforced by lien and foreclosure according to
this amendment. Board really doesn't like the homeowner? They fine the
owner twice and lien and foreclose if the fine isn't paid in a heartbeatr.
We heard lots of these stories during the meetings of the HOA Task Force.
The HOA bill that was prepared by Governor Jeb Bush’s HOA Task Force (I
was a member) in 2004 eliminated liens and foreclosures as enforcement
tool for two reasons: 1,)
The members of the HOA Task Force were presented with lots of proof that this “privilege” was
seriously abused by dictatorial boards and managers. We heard real horror
stories – well documented. 2.)
A HOA is not a government entity. Our Constitution only allows government
entities to fine its citizens. Two State Supreme Courts (VA +
RI) have
already ruled that fining by associations is unconstitutional. Condo law (FS 718) also disallows enforcement of fines through liens and foreclosures.
Honestly,
even amendments can’t make this bill any better. If this bill would be
enacted, we would see even more dictatorial abuse in these homeowners’
associations than we have right now! This bill is totally ill-advised and should be quickly discarded! |