Association Dues Or Ability To Violate Laws -- What's The Attraction?

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:

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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