WHO OPENED THE CAN OF WORMS?

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

Published April 16, 2011

Looking at the Bulletin Boards everywhere, I see that the Supreme Court ruling Cohn v. The Grand surely got people all stirred up. No matter what arguments you agree upon, the ruling made sure that the unit owners of the Grand will live further under the dictatorship of the business interest. In the case of the Grand, the owners of 810 residential units are ruled by the owners of 259 commercial and 141 retail units.

Don't forget, many unit owners live in so-called condo-hotels. Legislators heard many complaints from unit owners that the commercial owners use the majority of board members to divert association dues paid by the unit owners for their advantage. After being flooded by complaints from unit owners, the legislature finally took action. In 1995, the Legislature enacted section 718.404, Florida Statutes, regulating mixed-use condominiums. [Ch. 95-274, § 38, Laws of Fla. ] Section 718.404(2) established that in mixed-use condominiums with fifty percent or greater residential composition, the residential unit owners must be entitled to vote for a majority of seats on the board of directors. In 2007, the Legislature amended section 718.404(2) to make it retroactive, adding, "This subsection shall apply retroactively as a remedial measure." [Ch. 2007-173, § 5, Laws of Fla.]

The intentions of the legislators were good, but the commercial owners didn't appreciate this step in the direction of democracy -- and this started the lawsuit that opened the big can of worms, now known as the ruling of the Florida Supreme Court in the case SUSAN COHN V. THE GRAND CONDOMINIUM ASSOCIATION.

The attorney for the Grand Condominium Association was Daniel Rosenbaum. When this lawsuit started, Rosenbaum worked for the law firm of Becker & Poliakoff PA. When it came time for the appeal in the Third District Court of Appeal, attorney Rosenbaum -- together with many other former Becker & Poliakoff attorneys --had switched to Katzman Garfinkel Rosenbaum LLP (now Katzman Garfinkel & Berger). And when it was time for the Supreme Court hearing, Rosenbaum was the named partner of the law firm Rosenbaum Mollengarden Janssen & Siracusa, PLLC, in West Palm Beach . Rosenbaum was the attorney who represented the commercial owners from the very beginning to the final ruling of the Florida Supreme Court!

Daniel Rosenbaum was quoted in Daniel Vasquez's column in the Sun Sentinel: "Court ruling: New laws may not apply to your condo or HOA": "The best advice is to stay tuned. A lot is happening in this very hot area of the law right now. The Courts have to find the proper relationship between the need for new laws and the constitutional rights that protect contracts, both federal and state, and find the right balance for the times."

That is most likely good advice, especially considering the fact that all the attorneys seem to be very much divided in their opinions. From "the ruling will create a lot of chaos" to "nothing new -- it's business as usual" -- we have heard it all.

I think it's remarkable that especially the attorneys from the two law firms that were involved in opening this can of worms have pooh-poohed the ruling in their blogs and comments, more or less saying it was really only about voting rights -- nothing to get excited about.

I can absolutely understand why the folks behind CALL (Community Association Leadership Lobby -- Becker & Poliakoff) and CAN (Community Advocacy Network -- Katzman Garfinkel & Berger) don't really like a broad interpretation of this ruling. Imagine the ruling would include all the violations of contract rights caused by legislative changes in the statutes?

As one commentator on the Sun Sentinel Blog pointed out: "What would CAN and CALL be lobbying for if infringing on contractual rights is out of the picture?"

Don't forget, there is clearly a pattern behind Appeals Court rulings. The rulings go always against the private owners -- favoring special interests.

Remember the case of Coral Lakes Community Association, Inc. v. Busey Bank, N.A.? The ruling went against the homeowners' association -- meaning the homeowners.

Now the Grand case. Why is it that always the contractual rights of the special interests are violated -- never the contractual rights of the owners? That opens up the question: Do we owners really have any contractual rights -- or are we just puppets in a game played by special interests? Florida statutes leave owners more or less unprotected -- and owners normally don't have the financial means to fight for their rights in court.

Our power is in numbers! But as long as owners and board members allow special interest to lobby for us and use our numbers to impress the legislature, we will be left defenseless and the statutes will always favor special interest. CALL and CAN are special interest -- nothing else. For many years they have claimed to lobby for "associations." Who are the associations? Nobody but the owners who are paying the bills! What was achieved in the last few years that really helped associations/owners?

I really can't understand board members and owners allowing CALL and CAN to use their money, resources and numbers to lobby against their own interest! Only owners can really lobby for owners' interest. Specialized attorneys have their own financial interest -- and that of clients like developers and condo-hotel owners -- in mind. So please let them use their own money and resources to lobby for their interest. Stop allowing CALL and CAN to lobby in your name against your own interest. But if you do, please don't complain if you get fleeced.

Believe me, celebrating the ability of associations to stop owners behind in their association dues from using the community pool is not really a victory, it's rather evidence of incompetence.

Or is it a violation of contractual rights?

Answer Brief of Appellee Third DCA: Cohn V. The Grand Condominium Association

Florida Supreme Court: SUSAN COHN V. THE GRAND CONDOMINIUM ASSOCIATION