Court refuses to enforce arbitration ruling against homeowners’ association in Poinciana

Article Courtesy of The Ledger

By Mike Ferguson

Published December 6, 2017

POINCIANA — A judge ruled in the Association of Poinciana Villages’ favor against one man’s effort to enforce an arbitration ruling.

Judge Randall McDonald ruled in favor of the homeowners’ association in a case against resident and former board candidate Martin Negron on Nov. 21. Negron sought to have a June 23 Department of Professional Business and Regulation ruling enforced by the 10th Judicial Court and to have the ruling of another case thrown out because he was not given the opportunity to intervene. The judge ruled Negron’s motion was “untimely and did not establish a right to intervene.”

Negron successfully won an arbitration case with the Department of Professional Business Regulation in June. The arbitrator, Terri Leigh Jones, claimed that APV was “capricious” in the way it counted developer votes and ordered APV show that unplatted lots were developable. The ruling also nullified the results of the Feb. 14 HOA election and forced APV to hold a new one in August.

In the July Circuit Court case involving APV and Avatar, the judge ruled in favor of Avatar, allowing the developer to cast votes based on the maximum density of lots. Negron filed a complaint with the Florida Bar against Tom Slaten, APV’s Orlando-based lawyer because Negron was not notified of the separate hearing.

“Nobody knew about it,” said Keith Laytham, a spokesman for the civic group Friends of Poinciana Villages. “They kept this thing hush-hush secret. They circumvented the law.”

The complaint was dismissed. Negron was told the arbitration hearing would have to be upheld by the Circuit Court.

APV is a community of nearly 27,000 homes that encompasses parts of Polk and Osceola counties. The HOA is divided into nine villages with each being represented by a five-member board. One member from each village board is selected to serve on the community’s nine-member master board.

Each homeowner is given one vote for representation on his or her village board, but the developer is given one vote for each home that could be built on unplatted lots. Some homeowners like Negron say AV Homes manipulates the system by casting block votes for areas it has no intention of developing and some that are undevelopable by conservation standards.

The developer along with Fairhomes Property, a Canadian investment company, combined to cast nearly 9,900 votes in the Aug. 1 election, which was the difference in deciding the outcome. Candidates who are employees or former employees for one of those two companies won 11 of the 13 seats for which they were on the ballot. Friends of Poinciana Villages-backed candidates received the most non-developer votes, but couldn’t win a single seat.

“We are pleased that the Polk County Circuit Court has dismissed Martin Negron’s motion to intervene in our elections process,” a statement from APV reads.” You may have heard that Mr. Negron sought to reduce the number of votes that can be cast by some property owners. The judge presiding over this challenge ruled that Mr. Negron’s request was both untimely and failed to establish a right to intervene to challenge other property owner’s voting rights. The entire frivolous lawsuit filed by Mr. Negron has resulted in an unnecessary use of the Association’s resources so we are happy to have this matter settled and look forward to moving on. In regards to future elections, we will continue, as we always have, to follow all the proper procedures as directed to us by the State of Florida and the Circuit Court.”

There is a separate lawsuit against APV filed by homeowners Annette Brown-Best, Peter Jolly and Victor Destremps that will be heard on Feb. 5 in the 10th Judicial Circuit. The homeowners claim that APV violated the 1985 agreement in which the developer agreed to turn over control of the community. They also allege that APV, built in the 1970s, violated the Marketable Record Title Act that required it to modernize covenants and restrictions after 30 years.

Jolly and Destremps, both former board members, took $1.6 million from APV in August 2015 and put the money into accounts only they had access to. An injunction filed by APV forced the two men to pay it back.

So far, Laytham said, Friends of Poinciana Villages has spent more than $80,000 in legal fees. Laytham said the latest ruling will be appealed.

“This is like a banana republic,” Laytham said. “Now we have 80,000 people who buy homes in Poinciana and they become the subjects of Avatar. Avatar has gotten so many contracts they want signed regardless of what the state laws say. If we don’t win, this applies to every developer-run HOA in the country.”