LETTER TO EDITOR

On Independence Day we were all well fed with dramatic readings of the Declaration of Independence, written by Thomas Jefferson 225 years ago. ABC had engaged many famous actors to give us all a great reading of this document.
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  The long list of accusations includes: taxation without representation and tyranny and dictatorship.
Our founding forefathers signed this declaration with the final words:” And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”
They risked their lives, families and fortunes when signing this document. Today’s politicians only risk a lower balance on their campaign fund accounts, but still they seem to be unwilling to stand up for these rights, given to us by our founding forefathers.
But still today these problems, pointed out by the declaration of Independence are in existence in our great nation. Citizens all around the nation, living in CDD’s, HOA’s and Condo-associations are suffering from this lack of so-called “unalienable Rights”!
Since years activists all over the nation are trying to reform the existing HOA laws, in order to avoid many existing problems, created by the existing laws. Abusive boards have created dictatorships in HOA’s. Families have been evicted from their homes for a few dollars of unpaid dues, and many ridiculous law-suits have been waged against homeowners for issues like flying the national flag from a flag-pole, fences one inch too high or planter boxes at the wrong place. The examples are endless!

Despite the fact that reforms have been enacted by various legislatures, one major issue is very obvious. Without proper enforcement all these reforms are not worth the paper they are printed on.

Since last year CHIP, a Marion county based grass-roots organization, is desperately trying to get homeowners association (HOA) reforms enacted. A Marion County Ordinance 00-20, dated 7-11-2000, was enacted to no avail. Many of the developers plainly disobeyed the required filings, because there wasn’t any possible enforcement.

Senator Anna Cowin pledged support for HOA reform during her last election campaign. All she mustered was a local bill in the very last minutes of the legislative session, after 6 drafts and visits to her office by 10 developers and/or lobbyists for the stakeholders, which was doomed from the outset. Hopefully, her constituents will present her with "the bill" during the next election campaign, if she decides to run again?

It is definitely of great importance for us, the citizens of Florida, to let politicians know how we feel about broken campaign promises. We really don’t need any more politicians whose interests are more in favor of campaign funds than that of their constituents.

According to the latest information (see article below) CHIP is now trying to get another local bill enacted, regarding disclosure and financial reports. The CHIP board of directors seems to be willing to meet with politicians and lobbyists behind closed doors. Activists all over the State are fighting with boards and developers to comply with specific HOA laws for notice of meetings to avoid 'secret' meetings.  Do we now want to disregard these issues and start with closed meetings?

It will definitely not be to our advantage, if half-hearted, local reforms will be enacted. The past has shown that reforms, even if they were more or less useless, gave politicians and lobbyists the excuse for the next few years, not to touch the same issues again.
Please, don’t sacrifice years of hard work for HOA reforms for the cheap thrill of any small, but useless reform, no matter what.

Admittedly, after looking through the documents provided by CHIP, lots of work has been invested. The idea of proper disclosure and financial reports is definitely not new and is very necessary. But without the necessary enforcement, all these efforts are wasted. 

In my opinion it’s no miracle why politicians and lobbyists are jumping on the bandwagon to help pass these bills. They really don’t change any provisions, leave the industry where they want to be – untouchable – and will give everybody involved a good excuse for the next few years again: we just enacted new HOA reform. Nothing will change for the homeowners, as long as the contents of the bills are not enforced by the State. Local enforcement has proven to be unsuccessful and, sorry, no disrespect intended, only got chuckles out of the bigger developers. According to legal sources county government is unable to deal with these deep pocket industry, because they don’t have the necessary means to deal with these problems.

Reasons? Personal experience! 
We bought property six years ago in a HOA in St. Augustine, FL. I inquired before purchase, received financial statements, disclosure forms and nice brochures. Everything like it should be? An attorney assured me that according to s. 498.022 F.S., it's a 3rd degree felony to distribute false documents to prospective buyers. It took us 6-9 months to realize that the documents given to us were purposefully misleading. The disclosure form, stating we would be living in a guarded community with 24-hour guard at the gate - among other issues - was just issued to lure the buyers into purchasing. The financial report didn’t show that 5 relatives of the developer lived in the community without paying dues, that association money was permanently used to pay for developer’s expenses and that the developer claimed the association owed him more than $ 50.000, which he then started to deduct from the dues. The long list goes on. How did the General Attorney's office respond to inquiries regarding s. 498.022 F.S.?  We were informed that the Florida legislature didn’t provide any funds to prosecute violators of these Statutes!
61 out of 110 homeowners decided to join a lawsuit against the developer. That was more than five years and more than $ 30.000 ago. In the meanwhile 3 of these homeowners died, two live in a Nursing Home, 17 moved, frustrated with the existing problems and 8 decided not to support the lawsuit any longer for financial reasons. That leaves 32 homeowners still hoping that the court will settle this dispute. Until today, the developer is still up to his old tricks!

Is that what we really want? 
What homeowners really need is legislative HOA reform complete with enforcement! F.S. 720 provides lots of good ideas, but is pretty useless for homeowners, if they don’t have plenty of money and time to pursue them in court. Examples from Florida and other States as well show that only Statutes with provided enforcement will help the homeowners.

Please, don’t let small successes deceive us. Only a complete overhaul of existing laws with provided enforcement will help us. Let us all join forces, combine our experience and let us work together on something, which will really help to provide the necessary protection for the homeowners.

Don’t give politicians, lobbyists and industry partisans the public excuse they are looking for: we just enacted some new HOA reforms!

 07/27/01
Fanny Vail

I want to clear up some misconceptions about Concerned Homeowners in Partnership (CHIP) and its present intent to reform certain Florida law. Jan Bergemann’s letter in last week’s South Marion Citizen triggers this, but is not the sole reason for this reply. 

First of all, CHIP is not seeking purely local reform in the area of homeowner rights. Rather, CHIP wants statewide reform of a certain specific issue: financial accounting on the amenities, maintenance fees and service fees collected and/or spent by developers from homeowners in deed restricted communities. 

The specific statute on which CHIP is advocating reform is FS 689.265. 

Second, CHIP is not seeking reform of HOA (homeowner association) law. HOA law is encompassed in FS 720. 301 et al and CHIP has not promoted any reform of this law this year. 

No, folks, we are talking, we are fighting, for reform of law affecting developer controlled communities where fees are collected and/or spent by the developer or the management company, with no accountability at all to the homeowners from whom they are collected. 

We may seek to reform homeowner association law at a later time, but it is not our focus now. 

However, Bergemann’s statement that statewide reform of FS 689.265 is useless without regulation, without some type of oversight group and some type of penalty for non-compliance, is absolutely correct. 

As the law now stands, many developers do not even give an accounting, and they get away with it. This is because there is no penalty in the law as it now stands. The developer can just collect, spend, and not account at all. We need some way to rein in the errant runaway developer who flaunts the law and misuses the law-abiding citizens of the community. 

Bergemann and his cohorts further criticize that local control (giving the county the authority to regulate noncompliance) won’t work. This has been much debated by those in CHIP who drafted the proposed legislation, and still sits heavily in the minds of all who consider the problem. 

CHIP considered state regulatory control. There is a regulatory agency in place — the Department of Business and Professional Regulation. There is also the Department of Agriculture and Consumer Services. Complaints of fraudulent activity on the part of developers of deed restricted communities can go to these agencies. 

Problem is, lots of people have been there, done that, and gotten no results. These agencies are bureaucratic, unwieldy, and cumbersome to deal with. 

CHIP thought that permitting the county to do the regulating would allow for better response, and for faster accountability if that county entity did not do what it undertook to do. The citizens of the county could “rise up and speak up” and their voice would carry more weight in the local arena. 

Also, the county oversees, supposedly, the development within its boundaries, and the knowledge that a developer is not obeying the law MIGHT carry some weight when the county votes on land use issues or zoning issues brought by that developer. 

Actually, in Marion County there is an ordinance in place requiring developers to file their financial report with the county. Noncompliance with this ordinance now can bring the matter before Marion County’s Code Enforcement Board. 

T he concern with this is that the county may not presently be authorized to regulate or penalize offenders, because there is no penalty or oversight provision in the present law. The county has said that it can only do what it has been authorized by the state to do. So we need a change in state law, which gives the county the authority to review noncompliance of the developer. 

And CHIP realizes that this may not be the best solution, but the homeowners of deed restricted communities are not yet powerful enough to demand statewide regulation. County enforcement would be better than no enforcement. 

CHIP does not believe that its proposed reform is either “small” or “useless”. What Bergemann and his cohorts seem to be saying is that if we can’t get it all, we should not take anything. But reform of the law regarding homeowner rights in deed restricted communities will not come overnight nor will it come in one tidily complete package, given the history and the tenor of this fast growing state of ours. 

Reform in the arena of homeowner rights will be the result of a hard fought battle. It will not happen if we stick our heads in the sand and pretend the problem is not there. 

It will not happen if we demand all or nothing. It will be more likely to come if we work constructively and together, and if we are supported by all the homeowners in deed restricted communities who believe that reform is needed and are willing to show their intent both by joining in this fight and by wielding their ballot at election time. 

If you have a question, or if you want a membership application, please do call me, Fanny Vail, at 291-9495 or CHIP president Buddy Catledge at 861-1288 (or e-mail: [email protected]). Or you can ask any of our directors. 

Fortunately, the letter was on the same page as the Citizen editorial opinion; "Determined CHIP group's on right path." This enabled contrasting views of how meaningful reform related to homeowners rights might occur in our state.

Based on the earlier story, CHIP meets with lobbyist and the editorial opinion, the stakeholders and industry partisan are ready to support the CHIP bill as long as it doesn't contain penalties for failure to comply; independent audit provisions and enforcement remains at the local level.

The Citizen editorial suggests; "If CHIP is reasonable, pragmatic and willing to compromise, there's a good chance it will get what it wants." This could be an opportunity for "an on-going process," according to the editorial. 

To that we say, "Be careful what you ask for you might get it!" 

With all due respect to the Citizen and CHIP; consumer advocates for meaningful reform have been engaged in an 'on-going process' for 20+ years with very little in the way of compromise from the stakeholders and industry partisans. 

These entities are disengaged from the Citizens they've enticed to relocate. The visit by the lobbyist, albeit unusual, was simply a way to gauge the opposition; offer them a carrot on a stick; continue to wear them down and tell them what they are willing to accept in the way of reform. 

This is not a new tactic! 

We aren't surprised that Rep's Baxley and Argenziano will not seek comprehensive and broad reform of the laws of our state affecting HOA's and deed restricted communities. This, too, is not a new tactic! 

For residents that haven't been in Marion county since 1993, the only member of the Marion county legislative delegation in support of meaningful reform was former Senator Karen Johnson. She filed bills in '94 & '95 but we had to get a House sponsor from Broward county, Rep. Steven Geller. (now Senator Geller) 

The recent exceptions to the rule are Senator Anna Cowin with Representaive Dennis Baxley following her lead in the House. The Senator filed a local bill in 2001 which is very similar to the local bill CHIP is suggesting must be filed in 2002.

If you don't have a copy of the CHIP bill and want to review the content it's posted on our Web site. 

Residents of deed restricted communities with a mandatory homeowners association (HOA) enticed to relocate have compromised with these powerful and influential entities for far too long. 

The reasons are obvious; residents have depended upon elected officials to protect their rights and have failed to organize statewide to exercise the power and influence they truly would have if united for common goals and objectives. 

We admire the tenacity of CHIP leaders but a broad coalition of consumer advocates should be able to sit at a longer table with our friends and adversaries to brainstorm meaningful reform of current laws in order to balance the scales of justice. This is exactly what our organization has suggested to Governor Jeb Bush, et. al. and will continue to suggest. 

Otherwise, the Citizen is correct. We'll continue to be engaged in an ongoing process to reform our state laws. 

HOA's are unregulated and will remain so even if the bill offered by CHIP in it's current and/or revised form is enacted. The stakeholders and industry partisans will do all in their power to 'water it down' (as they have in the past) enabling the patient to swallow another dose of bad medicine while prolonging the life of the status quo rather than curing the problem. 

Caveat Emptor rather than Full Disclosure before and after contract for sale will remain the "Buy Words" in the 'Sunshine State.' 

Respectfully, the CHIP advocacy is the wrong approach and headed in the wrong direction. Jan Bergemann is correct. Meaningful reform will not happen and nothing of substance will change, if this local bill is enacted. 

Robert Janauskas 
Majestic Oaks