WATCH MAGIC WORDS BLOW UP IN SMOKE IN FEDERAL COURT!

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

Published July 2, 2011

Finally the lawsuit everybody was waiting for was filed -- as predicted at the town hall meeting of the Kendall Federation of Homeowner Associations in Miami on February 22, 2010. At that meeting Travis Moore, lobbyist for CAI (Community Associations Institute), Becker & Poliakoff and Continental Group, praised the community association bill filed for the upcoming legislative session -- the bill that was later enacted as S1196.

Honestly, I believe the parties behind this bill knew full well that this provision -- and some others from this bill -- would be challenged in court -- with just a tiny chance of survival. This was one of the FEEL-GOOD MEASURES added to the bill in order to tell owners, who were getting restless because of ever-increasing dues and special assessments, that something was being done to deal with the budget shortfalls in their associations.

At the meeting I challenged Travis Moore and made it very clear that this provision will only help attorneys charging for the enforcement of this provision and that in the end somebody will challenge the constitutionality of this bill.

And Voila -- here it is:

TCR Holdings, Inc. v. Windsor West Condominium Association, Inc. et al.

Attorney Katherine Amador-Fortuny phrased it very well in her Preliminary Statement:
"In the summer of 2010, the Florida Legislature passed significant revisions to Florida's Condominium Acts, many designed to strengthen condominium and homeowner association rights to collect maintenance fees. But in its zeal to placate cash-strapped condominium associations, the Legislature bestowed a private cause of action upon associations empowering them to garnish rent payments due from unit owners without any due process protections. The Legislature has thus "turned back the clock" and re-enacted a prejudgment garnishment scheme mirroring those held unconstitutional by the Supreme Court in the 1970's in Sniadach v. Family Finance Corp, Fuentes v. Shevin and their progeny."

Let's make one thing very clear: This is not a discussion whether this provision would help associations/owners deal with the financial crisis caused by unpaid dues and/or foreclosures. It's a discussion about contractual rights and due process, something the Florida legislators ignore in order to protect the parties that finance their election campaigns -- and possibly even more.

The party bringing this lawsuit is not arguing that the defendants didn't follow proper procedure as described in FS 718.116(11). The Exhibits attached to the lawsuit clearly show all the factual documents: LEASE AGREEMENTS (Exhibit A), LETTERS SENT BY MANAGEMENT COMPANY TO RENTERS (Exhibit B) and LETTERS SENT BY ASSOCIATION ATTORNEY TO UNIT-OWNER (PLAINTIFF) (Exhibit C).

This is what is really at stake in this lawsuit:

Count I: Violation of Procedural Due Process

And the lawsuit concludes under Paragraph 37. As a result, Florida Statute § 718.116, on its face and as applied, violates Due Process Clause of the Fourteenth Amendment.

Both community association bills enacted in the last two years -- S1196 (2010) and H1195 (2011) -- were filled with provisions that trampled upon contractual rights of owners. Owners are always told: "You signed a contract -- obey it."

A contract is normally a written (or verbal) agreement between two or more parties -- agreed to by all parties. The so-called contract in community associations is more or less a take it or leave it -- and we can change it in a heartbeat -- like it or not! I sometimes wonder why folks moving into community associations are not given a blank piece of paper to sign -- just headlined: RULES and REGULATIONS. It would surely simplify the whole paperwork, but would have the same effect. We all know that potential buyers are lured into these community associations under false pretenses anyway -- so why waste a lot of paper? GO GREEN!

To me, it seems that The Powers That Be are only screaming at owners: "YOU SIGNED A CONTRACT," when it is convenient and it serves their purpose. Otherwise STATUTES, RULES and REGULATIONS are being changed without considering the rights of the owners that relied on contractual rights when buying into community associations, with specific rules and statutes in place.

OWNERS' RIGHTS ARE OFTEN JUST TRAMPLED UPON!

Maybe if more and more court rulings invalidate many of these feel-good measures enacted to placate millions of unhappy owners, our legislators will finally feel inclined to enact laws that really help to deal with the actual problems in Florida's community associations.

The only question remaining: What's the next provision enacted by our esteemed legislators that will be challenged in court?