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An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Published
May 16, 2007
There
must be something very tempting that attracts people who already have had
a brush with the law to serve on association boards. Leaving us with the
big question: What attracts these kinds of people to board or management
positions in associations?
Is
it the fact that association funds are not really protected by
Florida
law? Embezzlement by board members is not being criminally prosecuted. A
recent case in Boca Raton (Suit
says Boca Rio funds misspent),
where a board president allegedly
gambled away more than $650,000 of the owners' money, saw the office of
the state attorney refusing to prosecute the guilty party! Excuse:
Contract Law! Meaning homeowners agreed by signing on the dotted line that
their funds could be embezzled?
Or
is it the fact that they can laugh about existing laws that are not
enforced and leave board members and attorneys free to plainly ignore
these statutes?
The
new president of a big condo association on the Galt Mile was prominently
featured in the report of the "President's Commission on Organized
Crime," and according to a letter mailed by the former board of this
association (quote) "was convicted of a federal felony some
years ago."
In
Navarre
the Secretary of a big homeowners' association
-- just
ousted by a recall -- had received a "desist and
refrain" order from the CA real estate board for
"commingling" escrow funds.
The
owner of a Miami-based management company -- just prominently featured in
an investigative report in the Miami Herald headlined "HOME,
SOUR HOME" -- is a
former
North Bay Village
commissioner who was suspended by Governor Bush and convicted in a later
trial.
Another
former county commissioner suspended from office, Tom Lyons, is serving on
the board of the EAST LINDEN ESTATES HOMEOWNERS' ASSOCIATION, INC. Tom
Lyons was as well involved in a large lawsuit as the owner of the Town
‘N Country Car Wash. According to the Tampa Tribune the
car wash owners admitted liability for negligence in the death of a
43-year mother of a 6-month-old child.
Tom Lyons has been on the board
of this association for many years, much to the dismay of some owners, who
accused him of election
misconduct and permanently
ignoring Florida Statutes 720, the statutes that supposedly govern
homeowners' associations.
Working
together with well-known attorney, Robert Tankel, who himself served a
suspension by the Florida Bar for making a false statement while
representing a client, these are the kind of flyers homeowners in this
association are finding on their door steps:
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IMPORTANT NOTICE
As a resident of East Linden Estates, you must maintain your property.
Each property owner has agreed, at the time of closing to abide by the By-Laws and Declaration of Covenants,
Conditions and Restrictions of East Linden Estates. These documents require every owner to comply with these restrictions and covenants, any and all rules and regulations adopted by the Board of Directors of the Association, any and all rules, standards, guidelines and procedures adopted by
the Architectural Control Committee (ACC) and all applicable State, County and Local Ordinances.
The Board of directors of the Association is also required to enforce the above, apply penalties where necessary and take legal or other action required to correct the problem all at the expense of the property owner.
Your Board has adopted the following procedure to enforce the above:
• Step 1: Notification by the ACC of violation and potential problems with 30 days to correct.
• Step 2: 2nd Notice from the President of the Home Owners Association (HOA).
• Step 3: Final Notice from the Association's attorney with notification of penalties and other action that will be taken. NOTE: This final letter will result in all cost incurred by the HOA being applied to the respective owner's annual assessment with a possible lien placed on the property.
• Mildew on the house or roof
• Mildew on the driveway or sidewalk
• Repair or replacement of old or damaged fences (replacement requires ACC approval)
• Trim and weed landscape areas and replace dead shrubs
• Clear natural areas of weeds, tall grasses and any debris
• Repaint house if necessary (requires ACC approval)
• Lawns shall not have weeds, bare spots or dead grass and be properly treated and watered to maintain a green and
healthy lawn.
After June 1, 2007 an inspection of all properties will be performed by the
members of the Board of Directors & ACC and Steps 2 and 3 will be implemented as required.
Please take the time now to inspect your home's exterior and surrounding property and correct any problems that exist. Your neighbors, the Board of Directors and the members of the ACC will appreciate your efforts and offer a big THANK YOU. |
Could
it be that neither Lyons nor Tankel read the Florida statutes -- or that
they are plainly trying to circumvent them? The Florida statutes are very
explicit when it comes to fining association members. In order to refresh
everybody's memory, here are the statutes regulating the fining process:
| FS 720.305(2) If
the governing documents so provide, an association may suspend,
for a reasonable period of time, the rights of a member or a
member's tenants, guests, or invitees, or both, to use common
areas and facilities and may levy reasonable fines, not to exceed
$100 per violation, against any member or any tenant, guest, or
invitee. A fine may be levied on the basis of each day of a
continuing violation, with a single notice and opportunity for
hearing, except that no such fine shall exceed $1,000 in the
aggregate unless otherwise provided in the governing documents. 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.
(a) A fine or suspension
may not be imposed without notice of at least 14 days to the
person sought to be fined or suspended and an opportunity for a
hearing before a committee of at least three members appointed by
the board who are not officers, directors, or employees of the
association, or the spouse, parent, child, brother, or sister of
an officer, director, or employee. If the committee, by majority
vote, does not approve a proposed fine or suspension, it may not
be imposed. |
Hearing
in front of an independent committee? Gee, much too complicated and could
give owners the opportunity to weasel out of the fine the board levied!
Or
check out Step 3: Fines and cost will just be added to the annual
assessment. Who cares about
Florida
statutes stating that a fine shall not become a lien against a parcel? By
adding it to the annual assessment it becomes a lien for unpaid dues --
right? Who cares about the little details? It's anyway much too expensive
for the homeowners to defend themselves against the board and their
attorney that violates
Florida
statutes. We will show them if they dare to contradict! It seems that's
the kind of attitude owners are facing!
I
guess that still leaves open the initial question:
Are these kinds of people, who already had their brushes with the law,
attracted to serve on the board because of the unprotected association
funds or the ability of board members to completely disregard
Florida
's laws and use association funds for their own defense when they are
caught?
No
matter the answer to this question: Really
at fault are our legislators, who have so far failed to create legislative
safeguards to protect homeowners against these kinds of abuses!
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