By Inger Garcia

My name is Inger Garcia. I have been an attorney in private practice since 1991 in Georgia and since 1997 in Florida. Prior to, I worked as an Intern Assistant State Attorney for Janet Reno in Miami. I have also interned for numerous Judges, as well as, my Law School Trial Program Director. I have been involved in real estate and/or litigation for over 16 years. The extent of violations by the Condominium Associations and their Boards is extensive. The truth is in black and white. I have compiled the most common issues and complaints this month.     HINTS, ALLEGATIONS, AND THINGS BETTER LEFT UNSAID

This month we will be discussing issues that you as Condo Owners requested.

FIRST AMENDMENT RIGHTS AND THE LACK OF “SLAPP” SUIT PROTECTIONS

In America we have First Amendment Rights to freedom of speech and expression without retaliation. However, there is no such thing for Condominium Unit Owners. In other Countries they put you in jail for speaking the truth.

Here, if you speak out or file a complaint, the result is a retaliatory lawsuit.

Did you know that Homeowner’s have protection under Florida Statute, Section 720.304 against “SLAPP” suits, but Condo Owners do not? The Statute protects owner’s rights to petition for redress of grievances before the various governmental entities of this state as protected by the First Amendment to the United States Constitution and s. 5, Art. I of the State Constitution. The Legislature recognizes that “Strategic Lawsuits Against Public Participation” or “SLAPP” suits, as they are typically called, have occurred when members are sued. However, it is the public policy of this state that government entities, business organizations, and individuals not engage in SLAPP suits because such actions are inconsistent with the right of owners to participate in the state’s institutions of government. Therefore, the Legislature prohibits lawsuits against owners who address matters concerning their homeowners’ association and will preserve this fundamental state policy, preserve the constitutional rights of owners, and assure the continuation of representative government in this state. An owner sued may be awarded treble damages and reasonable attorney’s fees and costs if they prevail in a suit. The Homeowners’ Associations may not expend association funds in prosecuting a SLAPP suit against an owner. We have a Condo Owner who is being sued for abuse of process for filing a complaint with the DPBR and for speaking to the media. This appears to be a SLAPP Suit. We will watch this closely.

BALCONY, POOLS AND BUILDERS

There is a current issue in Chateau Mar in regards to its pool, poolroom, and balconies. The poolroom windows were replaced without a majority vote. The majority of the Unit Owners voted against repairs to the balconies in the past as the assessments would be about $20,000.00 plus. Currently, a majority of the Unit Owners signed a written document against repairs to the balconies that were not an emergency.

Notwithstanding, the Board is attempting to declare the repairs an emergency and bypass the Unit Owner’s vote. The rumor is that a builder may want to purchase the property. One way to achieve that goal is to assess the Unit Owners so high that many lose their homes to foreclosure and/or be forced to sell below market value. A unit sold recently very below market. What are the issues? Was this an illegal assessment? Are the repairs a true emergency? What is the true motives behind the scenes?

RECORD REQUESTS AND COMPLAINTS

Many Board Members operate the Association like they own the Condo itself to the exclusion of the other owners. When a Condo Owner requests to review condo documents or speaks up against the way a condo is run, the result is SLAPP Suits, Intimidation, harassment and selective enforcement of condo rules. Many Unit Owners move out because of this harassment. Not fair!

See Dr. Walker’s article in this month’s paper concerning Windows. It appears that the insurance law requirements are inconsistent with the Condo Laws, and the Condo Laws are silent. The Associations can insure windows, but the individual Unit owner cannot. 

So, doesn’t it make logical sense that the Association should be responsible for the cost to repair or replace the window? Recently, a Condo Owner was mandated by the Board to install “impact windows” in her unit to the tune of $30,000.00. Who should pay this cost? In Playa del Sol there are issues where Unit Owners are attempting to seek reimbursement for windows and doors they replaced at their own expenses. Some Condos are paying for the windows, others are not.

RIGHT AND POWERS OF BOARD MEMBERS AND OFFICERS & ATTORNEY REPRESENTATION

All Board Members have the same rights, unless it is specified in the Condo Documents. There are also Officers in the Condo Association. Condos are not the same as Florida Profit Corporations. All Unit Owners are members of the Association. There have been problems with a “majority of Board Members” operating as they want and ignoring the rights of the other Board Members and Unit Owners. Certain Board Members are not being allowed to inspect or access the Condo Records at the instructions of other Board Members. These excluded Board Members are having to file DBPR complaints in order to gain access to records. I suggest the DBPR seize the records from the Condo Associations and create a provision when the DBPR can oust the Board Members who will not follow the law. In the past the DPBR has been fining the Association for denying access. This strategy is how the “majority of a Board of Directors” have been excluding the other Board Members from meaningful participation in the running of the Condominium. We need to enforce the law and/or clarify whom the condominium lawyers actually represent. If the lawyer represents “The Association,” whom do they actually represent? Some lawyers speak only to the President and Vice President, “the Officers” and not the entire Board of Directors. Other law firms will only speak to one or two of the Board Members and not the others. Whom do they represent and when will it be clear and consistent? Isn’t Florida corporate law different to some extent than Condo Law? We are trying to change the individual liability for Board of Directors in Condo settings.

Some buildings are monitoring the Unit Owners, such as Southpoint. They created keyless systems that track the Unit Owner’s and their guest’s movements.

Some Condos are using the Patriot Act as a defense to this harassment and stalking. Other buildings such as Playa del Sol are requesting duplicate keys. The problem is that the Association had apparently abused the emergency only entrance and it is creating a fear of loss of privacy. Do the Associations understand what a true emergency is? Will they abuse the freedom to enter the units? The police had refused to get involved. Scary, isn’t it.

BOARDS GONE WILD ON CONCRETE RESTORATION PROJECTS

Many condos are having problems with concrete restoration. Board Members have turned their back on the Unit Owners in possible breach of fiduciary duty by ignoring concrete companies over billing. The over billing may have been $5,000.00 to almost One Million Dollars, depending on the agreement.

Did you ever wonder why it is that the unit owner must notify the Association by certified mail and the Association may simply mail any notice to you with no proof of receipt?

It has been suggested that: We adopt the “SLAPP” Suit provision as the Homeowners have; We establish a pool of competent lawyers to represent the individual Unit Owners; We establish a pool of funds similar to the $4.00 charged per Unit Owner to fund the individual complaints, or designate a portion of funds for Unit Owners to secure legal representation and level the playing field between the Owners and the Board; We take the risk of a complaining Unit Owner losing their home away by protecting the Owner; We limit the Board of Director’s terms and make the removal of the Officers and Directors easier; We prevent the Boards from disqualification relevant votes by the individuals; and We prevent improper foreclosures by setting a minimum limit and/or amount of time required prior to a foreclosure suit being instituted.

I have been an attorney in private practice since 1991. Prior to, I worked as an Intern Assistant State Attorney for Janet Reno in Miami; interned for Judges; and interned for my Law School Trial Program Director. I have been involved in real estate and litigation for over 16 years. If you have any comments or questions, I may be reached at: [email protected], 

Tel.: 954-894-9962,

TALES FROM THE GALT GULAG -- PART I

TALES FROM THE GALT GULAG -- PART II

TALES FROM THE GALT GULAG -- PART III

TALES FROM THE GALT GULAG -- PART IV