Owners gain new leverage under law

The overhaul to homeowner association laws has been spurred by very public disputes, like a U.S. flag case in Jupiter.

Article Courtesy of the St. Petersburg Times

By JONI JAMES
Published August 9, 2004

TALLAHASSEE - Largo lawyer Jonathan Lamonte said his clients never meant to run afoul of the beige police.

The couple bought the paint for their Bent Tree community home from the local paint shop that was supposed to have the color on file.

But the paint was barely dry when "the president of the HOA walked by and said it was the wrong color of beige," Damonte said. "Before they knew it they were facing an injunction in court."

For years, Florida homeowners and their homeowner associations have had just one alternative when they can't agree: Go to court.

But under a new state law that takes effect Oct. 1, homeowners or the associations they belong to must try working out their problems in less-costly mediation before heading to the courthouse.

In addition, homeowners fined for violating neighborhood rules - be it walking the dog without a leash or failing to cut the grass - will not risk losing their home to foreclosure for failing to pay fines.

The first significant overhaul to homeowner association laws in more than a decade has been spurred by increasingly vocal homeowner rights' groups and highly publicized disputes. One of the more celebrated case involves George Andres of Jupiter, who has gone to court to battle foreclosure and $300,000 in fines for flying a 12-foot U.S. flag at his home.

The new law demands that homeowner associations, which assess mandatory maintenance or operational dues from all homeowners, operate like a government:

The associations must guarantee homeowners a right to speak at meetings and a right to view and copy association documents; require association boards to seek at least three competitive bids before awarding contracts for services or goods; post a notice of all association meetings.

Association boards also are required to address any issue in a public meeting if 20 percent of property owners petition them to do so.

The law also provides that the state Department of Business and Professional Regulation will arbitrate any dispute over the election or recall of association board members.

The changes, which passed after three years of effort, draw largely from the work of a governor's task force, which held six public meetings across the state last fall and winter.

"I think the feeling is that these issues can be kind of dicey, that they're local," said bill sponsor Sen. Jeff Atwater, R-North Palm Beach. "And that most of the conflicts come down to this: That homeowners need a greater voice in the process."

But no one is predicting the actual impact of the changes on the thousands of homeowner associations across the state. Everyone from homeowners to homeowner associations contend the law has shortcomings that could blunt its impact.

It lacks a provision, for example, on dealing with problems if one side won't agree to attend mediation sessions. The likely result: The complaint could still head straight to court.

Nor is it known how many people will actually be qualified to mediate. The Department of Business and Professional Regulation, charged with implementing the law, has yet to begin certifying mediators, whose expenses will be borne by the two parties.

But many attorneys think the change actually will cut costs for homeowners and associations by forcing mediation upfront, rather than after a judge has ordered it. Mandatory pre-court mediation has worked in condominium disputes for years, said Damonte, the Largo attorney who has represented both kinds of parties for the past 20 years.

"There's always going to be those cases where obstinate individuals don't want to come to agreement," said Damonte. "At least two-thirds to three-fourths of the time, it could work."

It worked, for example, in the case of the beige-paint case he handled nearly 10 years ago.

After a judge ordered mediation, his clients ended up getting their home repainted at the association's expense after the association acknowledged the couple had no way of determining the right color.

Plus, the couple was able to show that the enforcement was arbitrary: Four other neighborhood homes weren't even painted beige. Three were green and one was white.

But some homeowner advocates feel the law still is not enough.

"It's a step in the right direction, but it lacks enforcement or accountability," said Jan Bergemann, founder of Cyber Citizens for Justice, a homeowner rights group with a 178-paying members. The group is based from his home in a deed-restricted community in St. Augustine.

Bergemann's ultimate goal is a dedicated state office, like the one state lawmakers approved for condominiums this year, with the power to investigate allegations of misdeeds by homeowner association boards.

Gov. Jeb Bush fundamentally rejected that idea last year when he vetoed a bill that would have given some regulatory intervention to the Department of Business and Professional Regulation.

Atwater, sponsor of the new law, acknowledges the changes may not do what lawmakers hoped.

"It may be that these don't accomplish the end game of having a more informed homeowner who is being heard," Atwater said. "If that's the case we'll revisit it again."