| Article Courtesy
of the Palm Beach Post
By Josh Mitchell Published October 1, 2004 So maybe it was a little looney for Marianne Musella to insist on painting her driveway the color of a flamingo. Her neighbors were aghast. Her neighborhood board objected. And a court-ordered mediator ruled against the soccer mom's plans for pink parking pavement. Whatever the particulars, the neighborly dispute in suburban Boynton Beach last year was not unlike many others that divide Florida's suburban subdivisions. And it yielded an all-too-familiar outcome: 36 months in court, some $2,500 in legal expenses, one disgruntled homeowner. Until now, the adversarial forum of courts has been the only place for homeowners and their neighborhood boards to settle their squabbles. But new legislation that goes into effect today provides a possible alternative to costly lawsuits: state-imposed mediation. Under the new law, homeowners and their neighborhood boards must go through mediation before either can file a lawsuit. The state will appoint a legal professional to mediate, with the homeowner and the association splitting the fees. The new system is designed to counteract mounting lawsuits and save the homeowner and associations the money and agony associated with going to court. Other provisions of the new legislation:
"We heard of instances involving a homeowner's son parking in a guest parking spot and fines of about $100 becoming a lien and foreclosure," said William Sklar, a West Palm Beach lawyer who served on a statewide task force that recommended the legislation. "The owner had to pay over $3,000 in attorney fees to get her home out of foreclosure."
The legislation, the first major changes in homeowners law since the early 1990s, comes after Gov. Jeb Bush called for a look at association abuses following a dispute between a Jupiter man and his neighborhood association about his flying an American flag from a flagpole in his front yard. "The feeling overall is that something good has happened finally," said Jan Bergemann, president of Cyber Citizens for Justice in St. Augustine. Not all homeowners are as optimistic about the new legislation. Carol Michalic said eliminating an association's ability to place liens to recover fines takes away any power of the board to enforce community-voted bylaws. "It lets the bad guy continue to be bad without being penalized," said Michalic, a board member of Terranova at Venetian Isles in suburban Boynton Beach. "Let's say I issue someone a thousand-dollar fine for not picking up after their dog. They know, 'Guess what? You can't touch me.' The only time we can collect that money is when they sell." COMMENT: The
proud board member, who makes these comments, shows clearly that she
shouldn't even serve on her board. It seems that she has absolutely no idea
what she is talking about. She really got nothing right! First, she can't issue a thousand-dollar fine just like that! It's against the statutes.
Second, if the association jumps through all the required hoops she can easily go to Small Claims Court, without creating huge attorney fees. But now she has to prove that the violator really violated the deed-restrictions. No more: "Right or Wrong, if you don't pay, including huge attorney fees, we foreclose on your home!"
Don't forget, Supreme Courts in some states already ruled that fines issued by associations are considered unconstitutional.
Here you have one of the main reasons why the system fails the owners: people serving on the boards who are not even willing to inform themselves, but are willing to levy fines and foreclose on neighbors' homes. No wonder the system doesn't work. She
got about everything wrong she could get wrong!
Jan Bergemann Member
of the HOA Task Force that created the bill! |
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