Condo bill to limit power loses teeth

Article Courtesy of the NAPLESNEWS.COM

By I.M. Stackel

Posted April 29, 2006

Condo commandos. Foliage fascists. Decor Papa Docs.

Call them what you will.

Communities have the right to decide how their neighborhoods will look, but not to create mini-dictators, Florida legislators said going into this legislative session.

Several bills looked like they were going to rein in association directors, but softened over the past few weeks as the session moved toward next week's conclusion.

Lawmakers two years ago approved creating a condominium ombudsman. That's someone who oversees abuses parceled out by condo boards of directors.

But several legislators said they wanted even more government oversight to prevent bullying by power-hungry community leaders.

"They're interfering with the day-to-day lives of residents," Rep. Jeff Kottkamp, R-Cape Coral, said as the session began.

It is a problem legislators hear about daily throughout the state, he said.

"People have just had it," Kottkamp said.

He actively supported efforts two years ago by Rep. Julio Robaina, R-Miami, who traveled around the state and held a series of town hall-type meetings in which he listened to people rant about association directors.

This session, Kottkamp and Robaina hoped to tighten up some of the state rules, and reinstate language that got left on the legislative cutting room floor.

Kottkamp's House Bill 839 sailed through numerous committees with near-unanimous support, but has since lost some of its teeth. Kottkamp lobbied for HB 839, which seeks to revise and limit the powers and duties of homeowner association directors, and protects the individual homeowner's property rights.

Robaina has been a close ally in the fight.

He, and those who often hear complaints from constituents over director abuses, got much of what they wanted when Gov. Jeb Bush appointed the state's first condominium ombudsman.

That was pretty good, but now they're trying to get some rules passed that were removed two years ago, Robaina said.

He may have to wait another year.

When introduced, HB 839 was "consumer-friendly," said Jan Bergemann, founder of the DeLand-based organization, Cyber Citizens for Justice (CCFJ).

HB 839 then transmuted into HB 391, sponsored by Rep. Carl Domino, R-Palm Beach Gardens, Bergemann said.

State committees "mixed and matched" elements of Kottkamp's bill and Domino's bill, he said.

Despite concerns, current versions don't address lien or foreclosure issues in earnest, Bergemann said, speaking of associations that foreclose on homes and condos after an owner falls behind in annual fees.

The idea of mandatory mediation of disputes wasn't embraced by many parties because "it killed many frivolous lawsuits," Bergemann said.

While the original HB 839 called for mandatory mediation by the state condo board, the latest version excuses certain issues from mediation, including disputes over collection of assessments, fines or attorney's fees. So does HB 391, which was approved Friday in the Florida House.

The biggest changes in the two primary bills are some 10 pages of directions on voluntary dispute mediation, and a provision on beach access.

Kottkamp, Robaina and Domino couldn't be reached Friday to comment on changes to the legislation.

A national landmark decision 

Florida isn't the first state to try to protect its residents from power-hungry association directors.

On Feb. 7, three New Jersey appellate court judges ruled that homeowner association directors may not act like dictators.

In the "Committee for a Better Twin Rivers v. Twin Rivers Homeowners Association and Twin Rivers Community Trust" case, the judges said New Jersey's constitution guarantees homeowners the right to free speech, even if their homeowner association doesn't want to give it to them.

That meant the association couldn't stop residents from posting political endorsements separate from those chosen by association directors, and that the association directors had to let dissidents both use community rooms for their meetings, and have equal access to publication in the association's newsletter-type paper.

Members of Committee for a Better Twin Rivers were denied the opportunity to express their concerns about how the association was managed, couldn't obtain association financial records, and weren't allowed to record association board meetings.

The 67-page decision drew on various task force reports that documented board abuses.

The American Civil Liberties Union hailed the Twin Rivers decision as a triumph for the more than one million Jersey residents who live in such associations, and praised it as a national precedent.

"For the first time anywhere in the United States, an appellate court has ruled that such private communities are 'constitutional actors' and must therefore respect their members' freedom of speech," Rutgers Law Professor Frank Askin said in a prepared statement issued by ACLU and Rutgers Constitutional Litigation Clinic.

Lead counsel on the case, Askin said the court "recognized that just like shopping malls are the new public square, these associations have become and act, for all practical purposes, like municipal entities unto themselves."