association feuds draw state scrutiny
Article Courtesy of the Sun Sentinel
|By Joe Kollin
Posted October 19 2003
When their neighbors voted to restrict rentals at their Amelia Island condominium, Stephen and Judy Comley began a battle that landed in the state Legislature.
At the same time, George Andres' fight with his Jupiter homeowner association over his U.S. flag attracted the attention of Gov. Jeb Bush.
The two disputes led to two state task forces to determine whether the boards of directors of condominium and homeowner associations abuse their power and whether laws are needed to rein them in.
What the committees recommend, if anything, could affect the 5 million to 7 million Florida families who live in buildings and communities with mandatory associations.
Bush and House Speaker Johnnie Byrd contend the task forces are needed because boards have gone awry, the laws written in the early 1990s to regulate boards may not go far enough and homeowners need more protection from their boards.
Rep. Julio Robaina, R-Miami, convened a hearing in Miami last month. Despite a lack of publicity, it attracted 400 angry condo owners.
"We've opened a Pandora's box," Robaina said. "We're hearing complaints about everything from fraud in elections to no accountability by boards to nepotism to criminals serving as managers to two and three special assessments a year. There's no enforcement because the state doesn't have any laws to get investigators out to properly investigate and get state attorneys involved.''
The House committee, which consists of seven state representatives, plans to have its next meeting in Broward County, but has not yet determined a day or location.
The Comleys, of Frye Island, Maine, helped convince Byrd that the task force was needed.
The couple, who paid $465,000 for their North Florida apartment in 1996, were angry because more than two-thirds of their neighbors in the 28-unit complex voted to change the renting rule.
The couple had been renting the apartment to tenants by the month, but the new rule set a six-month minimum. Unable to find tenants to rent that long, the Comleys feared they would be forced to sell the unit.
After the referendum, the Comleys told neighbors of their plight. According to Stephen Comley, more than half the owners agreed to change their votes to allow his monthly rentals, but the condo board refused to allow a new vote.
The Comleys then asked legislative leaders to change state condo law to include what Florida Supreme Court Justice Peggy Quince called an "escape" provision. Although the court in 2002 upheld the right of owners to rewrite their rental rules, she realized this could deprive owners of "valuable rights" they had when they purchased. She suggested the Legislature change the law.
Following the Comleys' visit, Byrd created the committee.
They also went to see Senate President Jim King, R-Jacksonville, who asked one of his committees to look at writing an escape provision in the condo law.
As the House and Senate leaders were working, Bush, acting on his own, ordered the Department of Business & Professional Regulation to create a committee "to examine the challenges that [homeowner] associations face."
The 15-member committee, which receives no state money to operate, includes owners, directors, attorneys and real estate specialists. So far, it has met in Tallahassee and at the University of Miami Law School in Coral Gables.
Bush acted after learning that Andres, a former Marine, could lose his house because he insisted on flying his U.S. flag from a 12-foot flagpole instead of from brackets attached to his Jupiter house. The association's rules allow flags only with brackets.
After Andres refused to take down the flagpole, the Indian Creek Homeowners Association Phase IIIB imposed fines. He refused to pay and the association filed a suit to foreclose to collect more than $300,000 in fines and legal fees. The case is pending in the 4th District Court of Appeal in West Palm Beach.
Bush wrote to Andres, saying he was "shocked at the difficulties you confronted merely because you wished to fly a small United States flag in front of your home."
Homeowner associations in Florida have more power than condo associations and city governments. Neither a city nor a condo can foreclose on a house when the owner refuses to pay a fine for violating a rule or ordinance. Homeowner associations can and do.
The two Florida committees are expected to issue reports before the start of the legislative session March 2.
Not everyone agrees on the need for the committees or that new laws are the answer.
Condo law has evolved during 30 years and now is 90 pages long. The law governing homeowner associations is nine years old and 14 pages long.
"These communities are the most over-regulated and over-legislated in the state," said Gary Poliakoff, whose Fort Lauderdale-based law firm pioneered condo and homeowner law and represents 4,000 associations in Florida. "We dictate to private property owners what they can and can't do in their communities and I think we've reached the point where it is difficult for residents to function because of the degree of regulation that exists.''
What is needed instead of more laws is enforcement of those on the books, he said.
Jan Bergemann of St. Augustine is president of Cyber Citizens for Justice, a grass-roots organization fighting for the rights of owners in both condo and homeowner associations. He suggests the state create an agency similar to the Nevada Commission for Common-Interest Communities to enforce the laws.
It should, he said, regulate all mandatory association housing and be supported with a $4 annual fee from each unit owner.
But that isn't likely, according to Joe Adams, a Fort Myers-based attorney who serves on the homeowner association task force.
Bush's marching orders to his task force were to "make recommendations for legislative change consistent with Gov. Bush's vision for government and regulation."
Bush's vision is less government and less regulation.