|
Response
to Letter to Editor Sun Sentinel by Gary Poliakoff -- Dated September
An
Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.
Published
September 3, 2006
Mr. Poliakoff,
In my opinion your
letter to the editor, dated September 2, 2006, is just as evasive as
many of the other statements you like to make.
Quoting your
achievements and credentials doesn't alter the facts. A flawed system
governs community associations, but it has clearly failed the only
people with a vested interest in these associations: THE OWNERS!
You always make it
sound as if you are concerned about the welfare of the owners. I think
before discussing these issues any further it should be made very clear
that you and the attorneys of your law firm have no vested interest in
the welfare of these association members. Your only concern is your own
income. And everybody knows
that you and your law firm did really well financially -- much to the
detriment of many homeowners and condo owners who had to pay for
countless lawsuits.
So much said, let's
look at the facts.
First of all: The
headline of the AARP model statute clearly states: BILL of RIGHTS for
HOMEOWNERS in ASSOCIATIONS. It
didn’t mention condos. It is obvious that you like to distract from
this fact by trying to bring up condo statutes. I guess you wouldn't
like to admit openly that homeowners, living in homeowners'
associations, have been treated in Florida as unwanted stepchildren who
are only good enough to pay taxes, insurance premiums and lawyers' fees!
Let's make it very
clear: THIS HAS TO CHANGE -- REAL FAST!
Homeowners and
condo owners need statutes written in clear language.
They need easy enforcement of those statutes. They need
accountability of the people in charge. They need real education telling
all owners about their rights and obligations; education provided by
unbiased teachers – teachers who don't have their own income in mind!
For many years we
have heard about the Uniform Common Interest Ownership Act and the
Owners' Bill of Rights proudly proclaimed by the Community Associations
Institute (CAI) -- the trade organization of the service providers. All
of those empty words are nothing more than a deceptive smoke screen to
appease the people and "make them feel good"!
In all honesty, all
of these suggestions we have seen or heard will do nothing to improve
the resolution of problems in these associations, but they will
definitely improve the income of the service providers.
Let's face it: You
and your colleagues had many years to improve the laws governing our
Florida associations. Since you obviously failed miserably, you might
consider letting others do the work to improve the situation. I would
suggest that now the time is right to let other people decide how to
rewrite the statutes. The persons who have a vested interest in these
statutes – THE OWNERS -- should make these decisions!
How can you expect
service providers to write consumer-friendly bills that most likely will
reduce the income of these same service providers?
To make your point
about "surrendering rights," you quoted an appeals court
decision from 1971. Isn't that quite a while ago -- and times surely
have changed?
I quote the United
States Constitution, signed in 1787, and the Bill of Rights, introduced
by James Madison in 1789. Definitely much older documents, but certainly
the best we have ever seen written.
If you want to get
a little bit more up-to-date, you might quote a decision of the
Appellate Division of the Superior Court of New Jersey dated 2006.
This decision gave owners back their constitutional rights
"owners have signed away at the gates," according to certain
specialized attorneys. A good example is definitely the Amicus Brief of
the CAI in this case. We
can only hope that the New Jersey Supreme Court upholds this ruling and
favors some more issues brought up by Professor Frank Askin, who argued
the case for the homeowners of Twin River, New Jersey.
We
owners have rights. Since attorneys fight against us for our rights, we
definitely need a BILL of RIGHTS for HOMEOWNERS in ASSOCIATIONS -- to
re-establish our rights taken away by special interests!
Woody Federman
Sept.3, 2006
The individual must have his rights or else we live in dictatorship. Nobody in this world should have the right to tell any body how to keep his property if that individual owns it. It's nonsenese to feel otherwise. Didn't you ever learn
to mind your own business as a child. Use these initials as an adult HOAs MYOB.
Maida W Genser
Fort Lauderdale, FL
Sept.3,
2006
Even the AARP Bill of Rights for Homeowners in Associations falls short of the mark, and Gary Poliakoff is further off. Every man (or woman's) home is their castle. Powerful law firms, developers and management companies have influenced the nature of association rules for many years, all to the detriment of the rights of unit owners.
It is not a joke when you hear people say that you lose your constitutional rights when you move into one of these common interest ownership communities. People make tremendous concessions in order to find an affordable place to live - give up vehicles, give up beloved pets, and more. Younger people, the newer downsized/outsourced early retirees are not as willing to give up their preferred lifestyles. Florida is starting to change, slowly. One of the changes, which Citizens for Pets in Condos
(www.petsincondos.org ) advocates is switching from no-pet deed restrictions to pet guidelines. Let responsible animal guardians have pets; put the onus on uncooperative pet owners who ruin it for everyone else. It should not be a crime just to have a pet. Pets can do so much to improve personal health and provide companionship. Even Mr. Poliakoff, with his three cats, a dog, and several turtles knows this to be true.
It is high time for all Floridians to have rights. If you agree, at least about the pet issue, please sign the petition to Allow Pets in Privately Owned Dwellings. You can find it online as the first link from
www.petsincondos.org . You can also print off paper petitions and flyers from the web
site
NICO MINARDOS
Sept.3, 2006
LET ME LAUGH.
Humberto Sanchez
Miami, FL
Sept.3,
2006
Thank you Mr.
Poliakoff, I certainly appreciate your comments but no, thanks, we, the people who live in common interest communities have the right to change what in most part you created in Tallie in order to make millions. As it is now a unit owner is foreclosed for $10.00 without judicial process, are we living in Iraq or Cuba or America? if you are
so concerned about the well being of the people why haven't you take the initiative to change just this, that way we will see lots of frivolous cases in court rooms. I have seen many many cases where the owner doesn't owe any money, even after having the evidence but of course, lawyers don't make money out of
harmony but out of conflict. You know, will all due respect to the "ethical" lawyers that are still around, it is unfortunate that what was once the most ethical profession is
turning out to be the most repulsive one. I still remember when I was a young man when my father used to close deals with a hand shake, without a lawyer involved and he never had to visit a court room but that was ETHICS.
David Parker
Sept.3,
2006
Mr.
Poliakoff is pretty one sided in his views regarding this whole
matter. To begin with his comments should be tempered with the fact
that he is a senior partner in probably the biggest law firm (at least
in Fla) that represents property associations. NOT the owners, but the
governing body of such properties.
The Fl Appeals case he mentions specifically refers to "commonly
owned property" and not property owned by individuals. The
Appeals Court NEVER ruled on the property rights of anything other
than "common" property. Someone who lives in a HOA therefore
does NOT fall under this case law, and any property NOT owned by the
cooperative in other circumstances likewise also does NOT fall under
his broad view of this ruling. His support of this case law should not
be surprising given that his firm stands to make a lot of money based
on it's premise. Take away the ability to foreclose and litigate minor
cooperative disputes and Mr. Poliakoff would likely be living in one
of the communities he is making life difficult in.
Everyone needs to ask...what are the big Law Firms afraid of, the AARP
Bill only provides the same rights to people living in cooperatives
that everyone else in this great country already receives and enjoys.
What they are afraid of is losing millions of dollars in fees, their
palatial mansions, yachts, and luxury cars all bought with the dues
owners in cooperatives pay to maintain the cooperative, NOT litigate
against the very people who pay the dues.
Nanci
Sept.3,
2006
<<Assessments
are the life blood of common interest ownership communities. If an
owner fails to pay his/her/their share of the maintenance in a timely
manner, others make up the shortfall or the services are curtailed,
causing harm to every unit owner.>>
Pray tell, Mr. Poliakoff, how does eviction and vacancy increase the
ability of the property management to fund such common services?
Pray tell, Mr. Poliakoff, where in the Constitution does it give
third-parties (i.e., management, associations, etc.) the right to tell
OWNERS what they can have and not have in their units, i.e., pets,
visitors, etc.?
You don't seem to provide the answers to some very basic questions.
David
Shapiro
Sept.3,
2006
The
basic question is simply this.....Are those who live in a
condominium part of a democratic society, or are we, in fact living
under tyrannical rule that dictates our every move? Mr. Poliakoff
would do well to wake up and smell that coffee he's been drinking!
The time is long overdue for reform of the repressive dictatorial
atmosphere which has become synonymous with condo living. Our
country prides itself as a free and democratic society, in which
people enjoy their basic freedoms. Condominiums run contrary to any
such premise. Board members, puffed up by their own self importance,
subject their neighbors to all manner of harassment over the most
petty of issues. Lawsuits abound, pitting neighbor against neighbor.
Condo living has become such that despite your "ownership"
of your unit, others are in a position to dictate what you can and
cannot do within the confines of your property. It has come to
embody the most uncomfortable type of living for people who want
nothing more than to just kick back, relax, and enjoy life in sunny
Florida! And when you dare to complain about it, you're told,
"Well, if you don't like it, why don't you move?" Another
example of the friendly, neighborly atmosphere to be found in
condominiums!
Eric
Gallagher
Tampa, FL
Sept.3,
2006
" Assessments are the life blood" of
parasitic attorneys like Mr. Polokoff who make their living off of
these assessments.
Perhaps Mr. Polikoff is concerned that the passage of the AARP
bill would "disrupt the integrity of the common scheme.
Pompano
Beach, FL
Sept.3,
2006
After reading your article, I tried to
figure out what the real purpose of it was. It seemed to be a
self-serving polemic meant to reassure the many HOA's and
condo associations who have made you rich that you were still
their trusty hired gun and they can safely continue making you
richer.
All rules should pass the litmus test of logic and need before
being enacted or enforced. Mindless, ignorant rules that do
not pass the test should be broken. If the rules are not based
on logic or need it means they were made because of someone's,
probably a board member's, own fears or prejudice. The no pets
rule is exactly that sort of rule. It's neither logical nor
necessary.
Jeff
Chester
September
4, 2006
I
generally agree with Jan but there is much to what Poliakoff
writes. If it were possible to elect competent members to
the BODs of Condos and HOA's many of the issues would go
away. People buy condos and hoa controlled properties
without reading the covenants, the statutes or the financial
statements --- we've come so far from 'caveat emptor' we've
become a 'victim' society. Moreover, indviduals sign on to
be held to the covenants and then complain when they are
enforced. The condo concept in America is only about 40
years old, before that, the choice was to rent or to own
your own -- it separated the classes; people aspired to the
freedom afforded by owning their own. As legislators and
developers realized the money that could be derived from
breaking up properties into smaller and smaller units, they
evolved the condo concept. Developers like Irwin Levy,
assisted by lawyers like Poliakoff, Sachs and Shapiro wrote
docs which no one read and no one fought --- the price was
right.
Now that everyone has 'rights' the concept is breaking down;
most of the people who are in favor of the AARP measures
have never served on the BODs of their communities -- if
they had, they would have a better appreciation of the
difficulties involved in managing community interest
properties. This is not to say that Poliakoff and company
aren't guilty of terrible abuses -- but Poliakoff is correct
-- when you buy into a condo or HOA you give up certain
rights that you would have if it were a private home on a
non HOA lot (and battling city ordinances and zoning
restrictions isn't fun either). The fact that most people
can't afford/maintain a private home is not germane. It's
not the duty of government to provide affordable housing --
at least not yet -- and when it does, I can assure you that
the experience will be worse than any condo or HOA.
Michael Van Dyk - Miami
September
4, 2006
Mr. Poliakoff is insincere when he
says, "Floridians may be pleased to learn that
the...Right of Unit Owners' prevailing in litigation to
recover legal fees...[is] already incorporated into the
Condominium Act." Poliakoff's attorneys successfully
prevented me from recovering my legal fees in the case of
Van Dyk versus Golfwood HOA. The Poliakoff attorney argued
that my attorney had spent too much time on the case.
Although I won the case easily, the judge bought the
nonsense Poliakoff argument and I lost $8,000 in legal
costs. The law needs to be strengthened to keep the
bloodthirsty, rapacious Poliakoff lawyers in check. There
is little justice when Poliakoff attorneys are around.
Jerry Melvin
Fort Walton Beach, FL
September
4, 2006
In his opinion about the “AARP BILL
OF RIGHTS FOR HOMEOWNERS” Gary Poliakoff stated his
own personal views about money -- money that must be
collected from association members.
What does Poliakoff think about money? He calls it
“life blood.” Yes, indeed it is the life blood of
his law firm. Poliakoff is a partner in Becker &
Poliakoff, one of the largest law firms specialized in
association law in Florida. It has grown rich by
“collecting” the “life blood” from countless
citizens.
An interesting example about the means of pursuing
collection of “life blood” is the ruling of the
Miami Federal Court in the case of:
Fuller vs. Becker & Poliakoff (192 F. Supp. 2d 1361
M.D.Fla., 2002)
The court found the law firm of Becker & Poliakoff
GUILTY of violating Fair Debt Collection Practices Act (FDCPA).
HERE ARE SOME OF THE FACTS:
On consumers' motion for partial summary judgment, the
District Court, Kovachevich, Chief Judge, held that:
(1)
maintenance assessments from recreational property
memberships were "debts";
(2)
lawyers were "debt collectors";
(3)
language used in collection letters was a "false
representation" and "misleading" to a
least sophisticated consumer;
(4)
language used in collection letters was not
"deceptive" to a least sophisticated consumer;
(5)
collection letters did not "state amount of debt
owed"; and
(6) fact issues existed precluding summary judgment.
Class action lawsuit against the law firm of Becker&Poliakoff
brought by homeowners.
Consumers need help to solve the many problems they face
every day. Consumers who buy property in common interest
ownership communities need all of the help that they can
get.
Many consumers are at the mercy of ruthless and
profit-hungry law firms that intimidate them into giving
up their money and their homes.
HOW CAN WE ALL HELP TO SOLVE THIS GROWING PROBLEM?
•
Every property owner in an association must take an
active interest in his community and his association.
None of us can afford to let someone else “manage”
our communities and our lives.
•
Every consumer must guard his “life blood” to make
sure that some unscrupulous pickpocket does not steal
all of his money under the pretense of providing legal
advice or management services. The only advice we
consumers need is how to live in harmony in peaceful
communities, free from lawsuits.
•
Every Florida citizen must vote for legislators who have
openly committed to solve the dilemmas of home
ownership. Vote and actively support those Legislative
candidates who openly support the personal property
rights of home owners.
Those are the facts. They speak for themselves. Thank
you for making sure you know the facts
Jerry G. Melvin
M Skor
Miami, FL
September
5, 2006
The question is...to what degree
does one yield in giving up ones right to privacy and
basic civil rights. Mr. Poliakoff stands for BIG
Business and making sure his law firm generates $$$
from frivolous laws suits against condo owners
supporting shady condo directors and encourages his
associates to do so also. So, I couldn't care less
about Mr. Poliakoff opinion or comments on any
subject. Nor would I believe a word he says!
Barbara Gugliotti
Brooksville, FL
September
5, 2006
Mr.
Poliakoff,
If homebuyers knew what rights they were surrendering, I
believe there would be far fewer sales in “common
interest ownership communities” and hence far fewer of
these types of developments. No person who enjoys the
privileges of living within the United States would
knowingly surrender his or her Constitutional rights.
What you fail to understand are the concepts of
“common interest” and “community.” Common
interest refers to things that all homeowners within a
community share the responsibility for and the use of
such as entry ways, clubhouses, pools, playgrounds, etc.
A review of county records for individual homes within a
community shows only the name or names of those persons
who purchased those homes. Homeowners’ associations do
not bear the financial liability (the cost to purchase
the home, insurance, taxes, repair and maintenance,
etc.) for the homes within its boundaries, and its name
therefore does not appear on the titles to individual
homes within the community. Individual homes belong
solely to the persons whose names are on the titles.
To foreclose on someone’s home and likely his or her
largest investment may be legal, but it is without a
doubt unconscionable. Foreclosure most definitely does
not represent the concept of community. Communities and
neighborhoods are about people, not property. The
discord within homeowners’ or condominium associations
that exists and keeps you and others within your
profession in business is the result of property
becoming a priority over people. The lifeblood of common
interest communities is NOT assessments. The lifeblood
of any community is the working relationships between
the people within the community. Those working
relationships break down and/or fail when the
individuals within the community cease communicating
with each other directly and instead talk through
attorneys and property management companies. If you and
others in your profession truly wish to build strong
communities then I suggest you facilitate communication
and compromise, if that is at all possible for anyone
who whose job revolves around seeking win/loose
situations rather than win/win situations.
Clearwater
Beach, FL
September
5, 2006
Every time you see one of the
high priced lawyers talk about why we don't need
protection for condo owners, I invite you to think
about whether that person's opinion is worth the
time of day or whether that person should be seen in
the light of the day - as a shill for the "ka-ching"
lobby.
Think about it. Mr. Poliakoff's law firm collects
millions from condo controversy. His pedantic
rhetoric is a reflection of his worry that true
legislative reform might cut into his fancy life
style.
As an earlier commenter said, "the time is long
overdue for reform of the repressive dictatorial
atmosphere which has become synonymous with condo
living."
Board members who are enamored with their own
self-importance are child's play for the management
companies and attorneys who want to fill their
pockets. They are easily led around by the rings in
their noses.
That's why harassment and litigation-related issues
abound. And no matter who thinks they may
"win" when the issue is finally resolved,
the sad fact is that everybody loses, except the
lawyers, because all unit owners have to pay the
legal fees.
So the only real winner is Mr. Poliakoff, and others
of his ilk.
If our elected representatives listen to him, then
it's time to get new representatives who will listen
to the "little" people rather than the
silk tie advocates.
Gary
Poliakoff is one of those CAI CCAL lawyers, along
with 3 other of his attorneys, who has created
a trade group headed by one of his CCAL attorneys, Donna
Berger, to fight Cyber Citizens for Justice in
Florida. The ostentatious name given to the
lawyer trade group is Community Association
Leadership Lobby, or CALL.
By
this time you should have a clear understanding of
the lawyer's "word game", using meanings
and interpretations that are biased and that
misrepresent the facts. We, as advocates, must
set the record straight, not by generalized attacks on
proponents of homeowner rights, but on those who
continue to redefine American society, as in the
Poliakoff letter, to fit their income streams.
Citizens for
Constitutional Local Government
George K. Staropoli, Pres.
http://pvtgov.org
Condo owners' rights, obligations
Gary A. Poliakoff
fort lauderdale
Posted September 2 2006
As the American Bar Association's adviser to the National Conference of Commissioners on Uniform Laws, which is currently working on proposed amendments to the Uniform Common Interest Ownership Act, I am very familiar with AARP's proposed Bill of Rights for homeowners, given the fact that the commissioners have reviewed and debated each of the proposals.
Floridians may be pleased to learn that eight provisions of the proposed "Bill of Rights" (1. Alternative Dispute Resolution; 2. Right of Unit Owners' prevailing in litigation to recover legal fees; 3. Right of notice of board meetings where rules affecting the use of the condominium property are proposed; 4. Right to vote on rules and document amendments; 5. Access to books and records; 6. Right to run for office; 7. Assurance that associations and boards of directors must be reasonable in their actions; and 8. Ombudsman) are already incorporated into the Condominium Act.
The remaining two proposed rights (1. Prohibition of foreclosure against delinquent unit owners until the amount owed exceeds a given threshold; and 2. Unit owners not having to surrender their rights) are not in the best interest of unit owners. The sole source of funding of services necessary to maintain the community, from lawn care, pool maintenance, security, insurance, management and other professional services, comes from the board's authority to promulgate a budget, levy assessments and, where and when necessary, lien and foreclose upon delinquent unit owners.
Assessments are the life blood of common interest ownership communities. If an owner fails to pay his/her/their share of the maintenance in a timely manner, others make up the shortfall or the services are curtailed, causing harm to every unit owner.
Insofar as the misguided suggestion that unit owners should not have to surrender their rights, Florida's Fourth District Court of Appeal said it best in the case of Sterling Village Condominium Inc. v. Breitenbach, (251 So.2d 685): "…Every man may justly consider his home his castle and himself as the king, thereof; nonetheless, his sovereign fiat to use his property as he pleases must yield, at least in degree, where ownership is in common cooperation with others. The benefits of condominium living and ownership demand no less. The individual ought not be permitted to disrupt the integrity of the common scheme through his desire for change, however laudable that change might be." |