Dear Legislator:
I am currently entering my 20th year as a Florida lawyer
practicing community association law and
for the past two years have had the pleasure of being the
host of Condo Craze and HOAs, a weekly
one hour radio show on 850 WFTL. Furthermore, I was the
first attorney in the State of Florida
that designed a course that certifies condominium
residents as eligible to serve on a condominium
Board of Directors. I have now certified over 1,300
Floridians. Moreover, I am certified
as a Circuit Court Mediator by The Florida Supreme Court
and have mediated dozens of disputes
between associations and unit owners. Finally, I recently
argued the Cohn v. Grand
Condominium
case before The Florida Supreme Court, which is perhaps
the single most important association
law case decided by the court in a decade.
As a result of deficiencies in Florida Statutes 718 and
720, owners of homes located in condominiums
and homeowner associations have suffered financial losses
in their communities that far
exceed homeowners who do not live in community
associations. The foreclosure crisis has allowed
for tens of thousands of condominium units and homes not
paying their mandatory monthly assessments,
thus forcing the paying owners to pay even more each month
to make up for the shortfall.
There are a few simple solutions that The Florida
Legislature can take to help the over one million
Florida residents that live in a community association.
They are the following:
-
Increase the current statutory cap from 1% to 2% of
the original mortgage debt, that a bank is
required to
pay, once a bank forecloses on a unit and obtains
title. Last year, The Florida Legislature
raised the bank's limit from the lesser of 6 months of
unpaid assessments or 1% of the
original amount of the mortgage, to the lesser of 12
months of unpaid assessments or 1% of the
mortgage. This did not put an extra penny into the
coffers of Florida community associations
because the 1%
cap remained in place. The cap needs to be raised to
2%.
During the pendency of any foreclosure action by the
association against a unit owner, the unit owner
must place the condominium assessments into the court
registry as they come due. This is exactly
what the current landlord/tenant statute allows for.
Failure of the defendant to place the condominium
or HOA assessments into the court registry would allow
the association to obtain a default.
In addition to the financial problems plaguing our
homeowner associations, they face additional
burdens of
having no government oversight, unlike condominiums
which are somewhat regulated
by the Department of Business and Professional
Regulation. As a result of non regulation,
homeowner associations, unlike condominium
associations, have no Ombudsman's Office
to report irregularities to and no agency exists that
has the authority to investigate wrongdoing
in Florida homeowner associations, some who possess 7
figure annual budgets. Every
single condominium resident in the state of Florida is
annually assessed $4.00 per unit in order
to pay for the cost of regulation by the DBPR. If
every owner of a home in a homeowner's association
were assessed the same $4.00 annually, the DBPR would
easily have a budget sufficient
enough to also regulate homeowner associations. There
is simply no justifiable basis whatsoever
why condominiums are regulated and homeowner
associations are not.
Moreover, Florida Statute 720 allows HOAs to
administer their annual elections solely according
to the terms
of their governing documents. The problem is that
these governing documents normally
require that a majority of the community appear at the
annual meeting and without same,
there is no new election. Since a majority of owners
normally do not appear at the annual meeting,
this allows the same Board members to remain on the
Board for years and sometimes decades
on end and prevents thousands of people who want to
serve on these volunteer Boards from
serving. This year, legislation was pending which
would have required homeowner associations
to adopt the same voting procedures and eligibility
requirements that condominiums use,
as per Florida Statute 718.112. However, this
provision never made it into the final bill, HB
1195. In
Florida condominiums all directors must run for
election each year, and more importantly,
the election is valid as long as 20% of the eligible
voters cast votes in the condominium
election. The HOA statute should simply mirror the
condo statute. This would prevent
the disenfranchised feeling that literally thousands
of residents around the state feel each year
when their request to serve on an HOA Board is denied,
simply because a majority of owners
failed to attend the annual meeting. Again…just like
in condominiums, an election should
be valid as long as 20% of the eligible voters
participate in the annual election.
In condominium associations all Board members must now
become certified, either by signing an
affidavit that they read the statutes and governing
documents, or by attending a Board certification
course that is approved by the DBPR. As I indicated
earlier, I was the first attorney in
the State of Florida that designed a course that
certifies condominium residents as eligible to
serve on a
condominium Board of Directors. I have now certified
over 1,300 Floridians. I can tell
you that the course is appreciated by all who attend.
They appreciate the opportunity to learn
and simply
can't believe that the course isn't mandatory for all
Board members. It makes no sense
whatsoever that members of a condominium Board of
Directors must get certified but members
of an HOA Board do not. Indeed, many participants at
the seminar that I teach are residents
of homeowner associations and who enjoyed taking the
course and would love a specific course designed for
members of a homeowner's association Board. An
educational requirement
for all Board members is simply a law that can only
benefit all Florida community associations.
Each director should have the opportunity to learn the
statutes, the codes and the importance
of their governing documents. It can only result in
greater harmony for all of Florida's
community associations.
The homeowner's statute contains a provision for
mandatory mediation, prior to arbitration or the
filing of an
action in Circuit Court. The statute is very well
intentioned and is a wonderful idea. Mediation
unclogs the court system and keeps the costs down for
owners and associations. Most disputes
between associations and unit owners can easily be
settled by a qualified mediator at a fraction
of the cost of litigation or arbitration. Again, it
simply makes no sense for the members of
a homeowner's association to be required to mediate, but
condominium owners and Board members
must try to resolve their dispute in either court or
arbitration. Both association statutes should
require mediation as a prerequisite to arbitration or
litigation.
In my humble opinion,
and the opinion of countless listeners to the Condo Craze
radio show,
and other attorneys who practice in this area, these six
simple measures will do more to help
the people that live in Florida community associations
than all of the other legislation in this area
that has been passed over the last three years.
I am writing to each and every Florida legislator to
obtain a commitment that they would vote
either for or against these proposals. After 30 days, I
will announce the results on the air and
advise the show's listeners throughout the state which
legislators support these proposed amendments
to the statute and which do not. I have enclosed the
attached ballot, and a postage paid
return envelope, to be returned to this office.
I thank you in advance for your cooperation in this regard
and always invite any of you to express
any of your proposed solutions to solve the current
housing crisis in Florida, to be a guest
on the show, as some of you have already done.
Very
truly yours,
ERIC
M. GLAZER, ESQUIRE
BALLOT
1.
_________I would _______I
would not
support
an amendment to Florida Statute 718 and 720 which would
raise the statutory cap from
1% to 2% of the original amount of the mortgage, that a
bank would be required to pay
to an association when it takes back title to a unit.
2.
_________I would _______I
would not
Support
an amendment to Florida Statute 718 and 720 which would
require an owner to place
the assessments into the court registry as they come due
during the pendency of a foreclosure action by the
association, or face default.
3.
_________I would _______I
would not
Support
an amendment to Florida Statute 720 that would require
homeowner associations to
use the same voting procedures currently required by
condominiums according to Florida
Statute 718.
4.
_________I would _______I would
not
Support
an amendment to Florida Statute 720 that would require
homeowner association members
to pay $4.00 per unit annually to the DBPR and to have
said Department assist in
the regulation of homeowner associations throughout the
state.
5.
_________I would _______I
would not
Support
an amendment to Florida Statute 720 that would require
homeowner association Board
members to become certified within one year of becoming a
Board member or within
90 days of being elected to the Board, as currently
required of condominium Board
members.
6.
_________I would _______I would
not
Support
an amendment to Florida Statute 718 that would require
condominium
association
disputes to initiate in mediation rather than in
arbitration or court.
___________________________
________________________
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Glazer
& Associates, P.A.
3113
Stirling Road - Suite 201 - Hollywood 33312 - Telephone:
954-983-1112 - Telefax: 954-333-3983 |