An Opinion By Jan Bergemann
Published March 10, 2005

This year's legislative session just started, but reforms of mandated properties are high on the priority list of many constituents, who finally want enforcement of existing laws and accountability of these associations, who wield big power over the owners' daily lives. And the old saying still goes:  “Every association is only one step away from dictatorship!”

GIVE ASSOCIATIONS BACK TO THE OWNERS

will be the battle cry of the owners who are getting better organized each year, since the abuses are piling up.

The opposition, a trade organization named Community Associations Institute, is actually the mouthpiece for the service providers. I'm still baffled to see that certain board members support CAI, since their interests are definitely on different sides of the fence.  While service providers want to squeeze as much money out of these associations while providing as little service as possible, owners' interests should be to spend as little money as possible for the best service available.

These attorneys who claim to represent the interests of the homeowners and condo-owners is about the same as if Ford Motor Company claimed to represent the interests of the car buyers.  I guess it's obvious they can't be on the same side of the fence!

And an attorney hired to represent an association in a legal action is not necessarily hired as the mouthpiece of this association -- as they always claim.  Let's face it:  The claim by organizations like CALL to represent the interest of associations and owners is nothing else than a PR gimmick to increase the number.  And they just hope that legislators will believe their claims without checking!  Hello, is there really a Santa Claus?

Actually, legislators believed these attorneys for many, many years. “Specialized” attorneys wrote most of the current statutes that govern mandated properties.  These statutes have been written by attorneys, for attorneys and for the benefit of attorneys.

More and more owners find out that things are not the way they have been told and try to find some legislative relief.  They are quickly labeled "disgruntled" -- or even worse!

Let's review the 2004 Florida legislative session. The CAI, CALL and the big specialized law firms like Becker & Poliakoff fought the condo bill HB 1223, sponsored by Representative Julio Robaina.  Among the provisions of the bill was the creation of the Condo Advisory Council. 

Gary Poliakoff, senior partner of the law firm of Becker & Poliakoff, wrote in his analysis of last year's bill:  “16. Advisory Council in Condominiums. [ F.S. 718.5015 ].Note: Tried, costly, failed.”

And Joe Adams worded his opinion about the reason for these Councils being formed: 

“States Respond to Perceived Governance Abuses

In response to anecdotal stories about associations mistreating homeowners, a few states have formed advisory councils in hopes of preventing governance abuses.”

(Quote from an article of CEO Insights -- a publication of the Community Associations Institute)

But when the provision passed, Joe Adams, a well-known member of Becker & Poliakoff law firm, was awarded by being elected as chairman of the Condominium Advisory Council.  Common sense?

I seriously doubt that with members like Adams the council can be effective nor can the council create reasonable proposals for legislation to help the owners under siege!

The more you look into the flawed system, one thing becomes very obvious:  The attorneys are not the solution to the many problems  --  they are the problem!

Many of the amendments to association bills the legislature is being asked to make in 2005 are to fix loopholes to stop attorneys from circumventing the laws and governing documents.

To me, it seems that quite a few attorneys are more eager to circumvent the laws to please certain board members than to uphold these laws.

Since I'm not an attorney, I just use my common sense to look into the problems owners in associations face on a daily basis.  Maybe that gives me a different view?

Let's look at some examples:

Last year's bill enacted the following provision:

“FS 720.305 (2) 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.”“

Gee, absolutely no problem to circumvent this law.  Some attorneys didn't even blink an eye before telling board members that this provision is just ridiculous. Taking our rights away? (We'll show them a trick or two!)

New rule voted upon by board -- no input from owners needed:  "Every fine levied will automatically become an assessment, if still unpaid after 30 days!" And since we can still lien and foreclose for unpaid assessments, it's just business as usual.  (Do these legislators think they are dealing with dummies?)

During the HOA Task Force meetings in 2003-2004 we discussed speaking rights for owners at board meetings. The bill was filed, but somebody sneaked in a few words that destroyed the actual intent of the bill. This was the result:  “FS 720.303 (2)(b)  Members have the right to attend all meetings of the board and to speak on any matter placed on the agenda by petition of the voting interests for at least 3 minutes.” 

And as soon as the new bill was published, the attorneys wrote letters to the board members advising them that they don't have to let owners speak at the board meetings.  Some did allow members to speak anyway, because they think it's the right thing to do!  But others followed their attorneys’ advice -- and in many associations owners are still not allowed to speak to agenda items.  This finally MUST change!

Remember 2004’s battle about rental rights in condos?
”FS 718.110 (13)  Any amendment restricting unit owners' rights relating to the rental of units applies only to unit owners who consent to the amendment and unit owners who purchase their units after the effective date of that amendment.”

Attempts to get a majority to amend the deed restrictions, as required, failed before October 1, 2005?  No problem! The board just creates a rule, absolutely within their rights according to the attorney, which only allows one rental a year.  (Gee, did we get them!)

Board members are told:  All we have to do is claim it's a reasonable rule and the only way out for owners is to file legal action.  That will teach them not to vote in favor of the required amendment!  (This so happened in Palm Coast!)

Board doesn't like pets, but the owners fail to amend the deed restrictions to disallow pets, as demanded by the board? No problem, ask the attorney!  Answer:  We just pass a reasonable rule, only requires a majority vote of board members. The rule:  Every owner has to carry the pet within the condominium.  (That will teach them!)  Anyway, most of the pet owners are elderly and some are even disabled.  Since they are not able to follow the very “reasonable” rule, they just have to get rid off their pets.  And since most of them live on a fixed income, they surely don't have the finances to challenge this rule!  (Gee, did we show them!) (This so happened in Miami!)

And if all that doesn't help to put these unruly owners back in line, we attorneys just have to chair the next membership meeting. That will really teach them!  As an attorney, we have the right to threaten owners, call them names and tell them to shut up.  Doesn't matter if we are not members of the association and should only speak if being officially asked.  We bill them -- that's qualification enough to take over the membership meeting!

And the election is going our way -- we make sure of that --  only the old board guarantees that our contract will be renewed for the next year!  We take care of that -- even if it's necessary to add two extra seats to the board!  Who cares?  It's all OK, because it sure is a "reasonable" rule! How did the legislature come up with the idea that we should have to let the owners really vote?  What a waste of time!  They are just a bunch of disgruntled old farts -- and we know exactly what's good for them!  (This so happened in Broward County!)

GIVE ASSOCIATIONS BACK TO THE OWNERS

-- your constituents?

And if you are a homeowner or condo-owner who thinks like we do, don't believe all you are being told by these service providers. The Chicken Little theory will not apply if laws are being enforced, accountability enacted and education demanded.  Despite what you are being told, YOU WILL SAVE MONEY, not pay more!

Nothing wrong with honest service providers, but it's the owners' welfare and money at stake -- shouldn't we be the ones who have a say and call the shots?

Please read what we really want, not the propaganda spread by these groups that claim to represent the associations.  If you are an owner, fight on the owners' side!  It's your money and welfare at stake!  Please help us to enact statutes that help us owners, not the service providers who want our money!