Courtesy of the St. Petersburg Times
Published April 9, 2004
By JONI JAMES
TALLAHASSEE - Daniel and Elizabeth Cruz
got some disturbing news two years ago when they took their newborn daughter,
Megan, home to their Pembroke Pines condominium.
Megan wasn't welcome there.
Between 1998, when the Cruzes bought their
condo, and Megan's birth, the condominium association had voted to turn
the large complex into a seniors-only community for those 55 and older.
The parents could stay, but Megan had to
go.
The condo association board's decision
had state law on its side. A costly legal fight loomed.
Now, Florida lawmakers are considering
changing state law to give Florida's 1.1-million condo owners a way to
challenge rules about pets, rental rights or parking spaces.
Two bills working their way through the
Legislature would require condo boards to hold a public hearing on altering
rights owners had when they moved in, such as renting their condo seasonally.
Owners also could demand a poll of everyone; a right could not be changed
unless a majority agreed.
Sellers would be required to provide potential
buyers a simplified disclosure form detailing the financial health of the
condominium association, including liabilities, such as lawsuits or future
assessments.
To avoid lawsuits, the legislation would
create a state ombudsman's office that could mitigate complaints between
condo owners and their association boards, an idea that has drawn criticism
from one of the state's leading condominium lawyers. A $4 annual state
fee that condo owners already pay for regulatory oversight would fund the
office. Much of that money now funds general state government.
House sponsor Julio Robaina, R-Miami, also
wants to create a state advisory council to propose future changes to state
law or the ombudsman office.
Robaina said the House could vote on the
plan as early as next week. Senate sponsor Rudy Garcia, R-Hialeah, said
his bill must get through five committees, unless he can persuade the Senate
leadership to move more quickly to a vote by the full Senate.
Other than a lawsuit, state law now offers
little alternative to condo owners like the Cruzes in disputes with condo
boards.
The Cruzes ultimately prevailed but only
after lawyers were called in.
"I wouldn't wish that on anybody," Mrs.
Cruz said from her condo last week as 2-year-old Megan played in the background.
While their immediate neighbors were supportive, the board of the 1,900-unit
complex "was very nasty," she said.
Late last year, tales like the Cruzes'
poured out at statewide public hearings, prompting Robaina to propose an
ambitious, 25-point plan to overhaul the state's condominium laws.
Unveiled in January, the proposal sparked
a firestorm of opposition from condo boards, whose members are chosen by
their neighbors to oversee the operations, financing and common interest
of the condo complex.
Based on testimony from the hearings, Robaina
proposed background checks on board members; bans on immediate family members
serving together on condo boards; caps on legal fees associations pay for
routine matters; a ban on raising assessments without a majority of owners
approving the plan; and a requirement that all services contracts be awarded
only after the board solicited three competing bids.
Also recommended: Give the ombudsman the
right to conduct surprise visits on condo associations based on a complaint
by a condo owner.
One grass roots organization praised the
plan.
"The problem you have is that these boards
are equipped with lots of power, power enough to foreclose on you," said
Jan Bergemann of St. Augustine, founder of Cyber Citizens for Justice,
an Internet-based group that claims 2,000 members pushing for greater accountability
in homeowner and condo associations. "If the board violates its own rules,
it can use the owners' money to defend itself."
Meanwhile Gary Poliakoff of Fort Lauderdale,
whose law firm, Becker & Poliakoff, represents more than 4,000 condo
associations in the state, led the opposition.
"Those bills deserved to be drowned," Poliakoff
said last week.
In early March, Poliakoff wrote his clients:
"During the 31-plus years I have been an advocate for the rights of condominium
owners ... I have never seen proposed legislation which is more destructive."
Among Poliakoff's complaints was that Robaina's
original bill would have prohibited a condo board from approving a special
assessment that imposed a financial hardship on any unit owner without
a majority vote. "Financial hardship is not even defined in the bill,"
he wrote.
Poliakoff said, giving an ombudsman the
power to conduct surprise inspections would violate privacy because most
condo association documents are stored in the condos of board members.
Robaina, a freshman lawmaker, admits he
was ambitious. "We went for full bite of the apple. We knew it was a big
leap and we expected opposition, but we said it was a work in progress."
The controversy cost Robaina his original
Senate sponsor, Republican Evelyn Lynn of Ormond Beach. Garcia took up
the cause last week.
"It was extremely controversial when I
first read it," Garcia said. "But we still need to look at it. These are
cities on their own that really dictate how people live, where they park
their car, their security. They dictate their cost of living through assessment
fees."
Poliakoff still opposes creating an ombudsman.
The Division of Florida Land Sales, Condominiums and Mobile Homes has ample
jurisdiction to police condo associations, Poliakoff said. Lawmakers should
just provide more funding, he said.
But Bergemann said the bill doesn't go
far enough and says condo owners still might need to hire lawyers to fight
their condo associations. An ombudsman would be a step in the right direction,
he said.
Last week, Garcia told members of the Senate
Regulated Industries committee that the legislation is "my "going-home'
bill." Afterward, he said he can persuade his Senate colleagues to go along.
"The plan initially was too dramatic without substantive studies behind
it," Garcia said. "We've taken a lot of the controversial issues out of
the bill, we'll study them over summer and come back next year." |