CITIZENS FOR JUSTICE, INC.
3345 Kings Rd. S.
St. Augustine, Fl. 32086
Phone: (904) 794-0888
E-Mail: [email protected]
Re: Most Important
Criteria For Legislative Changes
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!
Four important issues need to be addressed:
+ Financial Report
Potential buyers have to be properly informed
about the risk of buying into a homeowners’ association, including the
fact that they are voluntarily signing away the constitutional protection
of the Florida Homestead Exemption.
As long as there are no serious fines
and/or real punishment for violating FS 689.26 by the seller, nobody will
care about abiding by these laws. Homeowners have found out about being
member of a mandatory HOA six month after moving in their new homes by
receiving statements from an attorney about past dues!
The same goes for FS 689.265 – Financial
There are many homeowners who moved into
voluntary associations on purpose. It has to be established, that these
homeowners will be able to stay with their initial choice without being
sued – and forced to spend big amounts for legal fees. There are already
court rulings to that effect, but certain regulations should make the defense
by Government Agency
As long as there is no government agency
to enforce the existing laws there will be no peace for homeowners. The
best laws will not protect the citizens if not enforced by the government.
All amendments and improvements to the existing laws will be a waste of
time and paper without our government taking on the responsibility of enforcing
the laws being created by the legislature.
Proposing a Constitutional amendment permitting
an encumbrance to be fixed on homestead property for an obligation to pay
certain homeowners association fees without permitting the forced sale
of the homestead.
Most Common Violations
The above listed problems will be explained
in detail to follow! The list goes on and on, but these are the most common
violations known. All these violations are possible because of total lack
of required enforcement. Complaints by owners to board members are most
often answered with: ”Sue us, if you don’t like it!” The board members,
their attorneys and community association managers know full well that
most of the individual owners don’t have the financial resources to fight
the association’s deep pockets --meaning the money contributed by
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.
Threats of liens and foreclosures
Unlawful changes of bylaws and deed-restrictions
by board decisions
Unjust financial gain of board members
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
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!
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
There have been different suggestions to
create a system with sufficient power to fight the growing problem.
Create An Ombudsman’s Office For
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
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 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 totally 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
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.
Refusal To Publish
Or To Allow Copying of Official Documents
Total Lack Of Financial
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.
No Public Board
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.
Elections For Boards
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
Threats Of Liens
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.
Election Fraud –
Using False Proxies, Unjust Suspension Of Voting Rights, Etc.
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.
Of Bylaws And Deed-Restrictions By Board Decisions
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
Gain Of Board Members And Relatives
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.
Use Of Reserve Funds
For Different Purposes
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 income 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!
Note: Even if some of the examples sound far-fetched,
they happen all over Florida and the named violations can be considered
common. Every one can be documented and there are owners available
to testify to these abuses.