RESPONSE House Bill 391 Study
                             

 CYBER CITIZENS FOR JUSTICE, INC.

Jan W. Bergemann  

President CCFJ, Inc.

1156 Tall Oaks Road

DeLand, FL 32720-1225

Phone:   (386) 740-1503   

E-Mail:  jan@ccfj.net   

Website:  http://www.ccfj.net

 

DELAND, August 26, 2006

 

“From Justice As A Foundation All Rights Flow”

   

Department of Business and Professional Regulation
Division Florida Land Sales, Condominiums & Mobile Homes

Att.: Michael Cochran, Director
Homeowners' Associations Section
Attention: House Bill 391 Study
1940 North Monroe Street, Suite 16
Tallahassee, Florida 32399-1029

Re:  House Bill 391 Study

Dear Mr. Cochran,

Thank you for your letter dated July 26, 2006. We will gladly use this opportunity to submit our ideas in regard to reforms of Florida Statutes 720 -- Homeowners' Associations.

Many of the issues still unresolved have already been discussed during meetings of Governor Jeb Bush’s HOA Task Force in 2003-2004.  Our organization offered many useful solutions, but the proposals were voted down by service providers with a financial interest to resist any kind of education, regulation, easy enforcement of existing statutes, and accountability of the people in charge!

In the mean time, even the people wearing big blinders must have realized that the solution that passed as Senate Bills 1184/2984 were just band-aids trying to heal a wounded system. 

We should definitely have all kinds of different associations under the umbrella of one agency -- but an agency that is willing to do the job to regulate these associations, not just write warning letters trying to cover up the problems. This strong, effective agency should have the power to enforce the rules, as required by law. 

There is nothing wrong with a unified statute that would cover many of the management issues, such as board of directors’ duties, elections, and recalls; meetings of boards and members; dues, assessments and special assessments; budgets, reserve funds, and financial reporting; inspection of association records – and the list goes on among these issues and others.

But we have to make sure that a “unified act” would contain separate provisions that are specifically necessary for the different kinds of ownership.  Different kinds of ownership create different kinds of needs.  It is obvious that a condominium owner, who actually doesn’t own a parcel or acreage, has different issues to deal with than the owner of a single-family home, where the parcel of land itself creates different liabilities.

It is imperative that the language must be clear to make the distinctions that help owners to understand the problems inherent with each specific kind of home ownership.

Otherwise, we may see an owner of a single-family home sue the association for mold in his wall, or a condo-owner being sued for brown spots on the community’s lawn.  These hypothetical examples show that different kinds of ownership create different issues.

This becomes apparent when we examine town homes -- also called villas or cluster homes.

 

TOWN HOMES

Since they really don't fit into either category -- it leads to too many complications for the owners. We see associations with these kinds of buildings in big lawsuits with no solution in sight. Some are incorporated as condominiums (FS 718), some as homeowners' associations (FS 720). Neither FS 718 nor FS 720 fits these specific kinds of homes.  Especially insurance, repair and maintenance disputes are leaving owners with outrageous legal bills -- and insurance settlements that are used for litigation instead of repair and maintenance.  Associations retain the insurance settlements, since the policyholders named are the associations -- and the deeded owners have to beg the associations to pay for the desperately needed repairs.  Since they are association policies, the deductibles often are higher than the damages and the homeowner gets stuck with the cost!  Most likely the worst example in Florida's history is the case of "Nature Watch." 

(See: http://www.ccfj.net/HOAartFLNWHOA.htm)

The owners will never recover from the financial losses suffered by useless lawsuits created by statutes that are open to all kinds of interpretation. 

 

Special provisions for town homes have to include insurance and maintenance regulations.  When the deeded owner of a building is not the policyholder, it leaves doors wide open for scams, frauds -- and kickbacks!  Reasonable solution:  Owner should be the policyholder.

 

REVITALIZATION OF COVENANTS

Revitalization of covenants of older, non-mandatory community associations may be a good idea, but since the opt-out provision in FS 720.407(5) had expired long ago, it will just create many more lawsuits.  Many owners had moved into these communities on purpose -- to avoid associations.  Therefore, they will not agree to be part of any association again.

 

Revitalization without an opt-out clause is a clear violation of private property rights. Revitalizing mandatory associations by using FS 720.403-407 -- enacted in 2004 -- turned out to be a disaster that created more legal fights in some associations instead of creating nice communities.  Result: Neighbors are not talking to neighbors any more!  The only winners -- as usual: The attorneys!

 

You heard the outcry about eminent domain: This "revitalization" is very similar on a smaller scale, because it will force owners to either go to court or agree to something they don't want!

 

If owners in communities with expired deed restrictions choose to create a voluntary homeowners' association, they should be allowed to organize -- but only amongst the owners that are willing to be part of it. 

 

HOMEOWNERS' ASSOCIATIONS

 

The events since the final report of the HOA Task Force in 2004 have clearly shown that the changes proposed by homeowners' representatives on the task force should have been enacted. Unfortunately, even the best statutes are useless, as long as there is no enforcement and no accountability of the people in charge.

 

Despite many similarities between condominium associations and homeowners' associations, we should not discuss combining the statutes into one Act. 

    

There are lots of provisions that can be used for all different kinds of mandated properties.  For example: The HOA Task Force plainly used the provisions of the Condo Act for Recalls of Directors and rewrote it for FS 720. This should be done as well with the provisions regulating the election of the board of directors. Since HOA election regulations are very vague -- or barely existent -- many elections have nothing to do with a democratic process. This has to change!

 

We feel that a uniform act will not serve the purpose intended.  It would be like mixing apples and oranges!

 

In the just published BILL of RIGHTS for HOMEOWNER ASSOCIATIONS the AARP establishes the Basic Principles of Consumer Protection:

  • The Right to Security against Foreclosure

  • The Right to Resolve Disputes without Litigation

  • The Right to Fairness in Litigation

  • The Right to Be Told of All Rules and Charges

  • The Right to Stability in Rules and Charges

  • The Right to Individual Autonomy

  • The Right to Oversight of Associations and Directors

  • The Right to Vote and Run for Office

  • The Right to Reasonable Associations and Directors

  • The Right to an Ombudsperson for Homeowners

In order to guarantee these rights we need to:

  • Create A Combined Government Agency With Enforcement Power For All Types Of Associations

  • Create Ombudsman Office For All Types Of Associations

  • Give Ombudsman Office More Power To Enforce Demands  

  • Create An Education Program Accessible For All Owners And Board Members

  • Create Fair and Honest Elections, Supervised If Required

  • Create A Special Administrative Court System With Set Fees

  • Create Accountability Of Board Members And Service Providers, Including Criminal Prosecution

The best statutes will fail the homeowners if the enforceability depends on financial resources. Most homeowners are unable to use the court system to fight for their rights, especially considering that the board is using the homeowners’ own dues to defend their violations!

 

An effective Ombudsman's Office with certain vested powers will seriously reduce the number of useless lawsuits, such as requests to inspect and/or copy public documents and financial records. In most instances, the statutes are very clear -- lengthy court battles are not necessary.

 

If election and recall provisions were enforced and the government agency in charge of arbitration followed its own rules -- and stopped making new rules trying to circumvent the statutes -- Florida would take a great step forward to ensure Democracy and Fairness in our Communities!

 

Homeowners' Association statutes need a total rewrite to stop the outrageous problems.  Another few “quick fixes” won’t help the owners who need real solutions to real problems.

 

A bill considering the problems above will be ready in time for the next legislative session, using the AARP BILL OF RIGHTS FOR HOMEOWNER ASSOCIATIONS as guidelines for the necessary changes.

 

Thank you for listening to our concerns, ideas and proposals!

 

Warm Regards,

Jan Bergemann, President
Cyber Citizens For Justice, Inc.
http://www.ccfj.net/

 

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