Without any reasonable method of enforcement, most all enacted legislative changes will not help the homeowners and condo-owners.  Most of the violations of existing laws are allowed to continue because of the inability of the owners to enforce their rights in court.  Due to lack of financial resources, the abused owners cannot defend themselves. The DBPR has shown that it is unable to fulfill that task and is definitely not helping to resolve the problems. Their methods of enforcement damage the welfare of our citizens!

Most Common Violations By Associations

• Refusal to publish or to allow copying of official documents
• Total lack of financial accounting
• No public board meetings
• Cancellation of elections for boards
• Election Fraud – Using false proxies, unjust suspension of voting rights, etc.
• Selective Enforcement
• Threats of liens and foreclosures
• Unlawful changes of bylaws and deed-restrictions by board decisions
• Creating arbitrary and capricious rules
• Unjust financial gain of board members and relatives
• Use of reserve funds for different purposes

Most owners want to buy a home for their families, not a share in association politics. If financial records of these associations show that up to 70% of the budget is used for management and legal fees, it is very obvious that the existing system is totally flawed.

Experience from all the past years and daily horror stories are proof that only a total overhaul of the system, led by some way to easily enforce the regulations, will help the homeowners and condo-owners in desperate need!

                                                Enforcement

Without easy enforcement of the regulations, any changes in existing laws are doomed to fail. The major reason for the many known violations is the lack of enforceability by the owners. Using the DBPR as enforcer has failed. The attempt to deregulate community association managers during the last legislative session was just a further proof that the DBPR as enforcing agency is lacking the necessary teeth to fulfill the duties.

There have been different suggestions to create a system with sufficient power to fight the growing problem.
 

Create An Ombudsman’s Office For Mandated Properties
Such an agency, empowered with the necessary ability to enforce the verdicts, would most likely solve 90% of the known problems. Adding branches in central locations would enable boards and owners to get fast answers to their complaints. A mix of parties with a vested interest in charge of the decisions should help to create a reasonable way for swift decisions.
Talks with industry lobbyists have shown that the industry is most likely willing to agree to such a solution.

Create A Small Claims Court System For Housing Issues
Created after the example of the CA SCC system – no attorneys allowed if not party to legal action – would give fast decisions at low cost.  Both parties would have to represent themselves.

Ombudsman’s Office would definitely be the better of the two proposed choices. Not only could this agency deal with all the legal issues, but as well with the necessary education, regulating the involved industry (CAM) and proposing legislative changes to the laws. This office should be in charge of problems for the Florida Statutes 498, 617, 718, 719, 720, 721 and sections 689.26 and 689.265 and regulating the involved professions. It could be ruled by a committee of appointed members belonging to parties with vested interests. Details would need to be discussed.

FINANCING
Financing of this agency could easily be accomplished by an annual $4 door-charge from of all the units in question. According to numbers provided by the DBPR (not accurate in my opinion), the charge would create an annual budget of minimum $19 million, enough to create a self-sufficient agency, financially able to take care of all the necessary tasks. This would save as well many regular tax dollars. According to information from the Florida Courts, every hour in court costs the Florida taxpayer more than $1000.  Considering the many lawsuits filed in Florida regarding problems with mandated properties, the tax savings would be immense. And it would as well help the court system, which has problems dealing with the huge caseload.

Very important factor is the proper education of the parties involved. The DBPR has in the past given the education part to the Community Association Institute, a trade organization with a membership of service providers for mandated properties. In my opinion, it is not important to teach the members of associations how to enforce regulations, but how to work peacefully together for the welfare of the association members. CAI members do have a certain conflict of interest, since a peaceful association is not a great moneymaker for them, as easily explained.

Most of the violations are easily corrected. In most cases, the culprits know that they violate existing regulations. But the fact that there is no punishment for breaking the rules makes it easier for normally law-abiding citizens to violate the laws.  Since the owner, having to rely on civil litigation, will be forced into year-long battles, mostly only little attempts are made by the owners to fight for their given rights. If they file a lawsuit, owners will look at lengthy court battles, made expensive by many filed motions, useless depositions and postponements, targeting the wallet of the owners. In many cases you can see that there are no serious attempts made by owners to defend themselves against the alleged violations. By drawing out the legal action, the deep-pocket party is trying to win on the financial issues, targeting the financial funding of the owner’s case. Case law is barely existent, because the industry will try to get a sealed settlement, if they realize that the owner’s financial resources will get them to trial.

But in the end it’s always the homeowner and condo-owner that pay the bill – win or lose! That leads to the tactic by boards to scare the neighbors by accusing the suing owner of wasting association dues for legal cost, trying to use peer-pressure to succeed.

             VIOLATION EXPLANATIONS

Refusal To Publish Or To Allow Copying of Official Documents

• Boards often plainly refuse to allow owners to inspect and copy the official records, as required by statutes. Excuses start with “we don’t have to” and end with “confidential information.”  Even confrontation with written Florida Statutes often doesn’t sway board members and/or attorneys to obey the law. Examples have shown that boards have used up to $10,000 in legal fees to avoid inspection of public records.

• Despite statutes requiring that financial records, budgets and detailed records of all receipts and expenditures be made available to the owners upon request, boards and especially management companies find all kind of excuses to avoid this. This often creates an atmosphere of distrust, the call for audits and unrest among the owners. It definitely helps to cover up embezzlement or abuse of funds, including unfair enrichment of board members' friends and relatives.

• Many boards refuse to hold board meetings in public, as required by statutes. Notifications of the owners about upcoming board meetings are not posted. Decisions are made behind closed doors. This makes it impossible for owners to monitor their association’s business. Recently a board member was confronted about holding secret board meetings.  He responded, ”It’s none of your business anyway. If we raise your dues you will be duly notified!” This is a pretty common attitude from elected boards.

• Many entrenched boards plainly refuse to hold the required elections. Excuses like: “Committee found no new candidates,” “We have a functioning board, we don’t need an election” or “We already appointed the new board” are very common. Owners are plainly disenfranchised.

• Despite a recent court decision in regards to the FDCPA and the Florida Bar issuing warnings against UPL (Unlicensed Practice of Law), the practice to file liens and send foreclosure threats is still being used by boards to subdue “disgruntled” homeowners who don’t follow the party-line or who dare to ask for official association documents. And even if it turns out that the dues or fines in question were paid in time, the board still expects THE OWNER to pay the filing fees and often as well attorney costs, even if there was no judgment. Threatened with losing their homes, and unable to afford to hire an attorney, owners often give in to the blackmail. It’s cheaper than hiring an attorney! And they will definitely never again dare to contradict the board or manager.

• Even if the elections take place, there are many known ways to keep the old board members in office.  Common ways to circumvent surprises for incumbents:  Falsifying or miscounting proxies – no recounts allowed AND “Secret ballot” – suspending the voting rights of known “disgruntled members” at the evening of meeting for non-payment of dues (if you can prove next day that you paid, sorry, problem with accounting – but election is over!).  Declaring “lack of quorum,” if things don’t seem to go the right way, is another method used to circumvent a proper election, as required by statutes. Then it’s time to reappoint the old board again!

• Boards seem to love making changes to bylaws and deed-restrictions. Out of nowhere they create age-restricted communities, disallow pets or limit pets to certain weights, limit visitors and vehicle parking  --   among the favorites changes.  Avoiding the legal process, they officially vote only as a board – despite statutes require a membership vote!   Then they print new deed-restrictions with new rules and notify the membership of these changes. But they conveniently forget to file the amendments in the courthouse in order to avoid filing the necessary affidavit.

• Boards often make decisions that enrich either themselves or their friends and relatives.   From decisions to install hurricane shutters, new doors, or mailboxes to hiring service companies  --   the possibilities are big.  Paybacks are common to other board members – “You get your hurricane shutters for free” OR “Nobody has to know that ‘Safety Doors, Inc.’ is owned by my brother-in-law?”  Other board members have founded landscaping and/or maintenance companies, after securing the contract by board vote.  It seems easier when board members just write checks for each other for fulfilling certain imaginary services.

• Reserve funds are reserved to pay for rainy days or foreseeable big repairs, specifically dedicated by the legislators for these purposes.  Yet this money is often used to fund certain “other” expenses, voted upon by the board.  “Road reserves” can pay for tennis courts or for a bigger pool for the swim team, coached by the wife of the board president!  Since certain special assessments need membership approval, it’s easier to use the money already sitting ready to use in a reserve account.  Then if the building suddenly needs a new roof, the membership MUST approve the necessary funds, or they will see what a leaky roof does to their condo-unit!

Most of the common problems in associations start with little issues, which could be avoided if all parties were aware of easy enforcement.  Power-hungry board members are kept in office, supported by so-called “service providers” like attorneys and management companies, who fear for their own incomes if a new board takes over.  And since enforcement and punishment are missing, even normally law-abiding citizens are easily tempted to break the rules.

In the past, legislators have tried to improve the system by amending the existing statutes. The attempts failed due to lack of enforcement.  Without the necessary enforcement, all changes will be band-aids trying to cover big open wounds.

Please don’t forget that for most citizens the purchase of a home is the biggest investment of their lives. They normally don’t have another $5000 in cash to pay a retainer for an attorney to inspect public records.  Just an example!

A solution to improve the totally flawed system of mandated properties is long overdue!