Florida's New Condo Ombudsman Dreams of Simplification

Q. How does a person who is suing his condo association and being sued by it become the state ombudsman for condominiums?

A. The lawsuit that I did, I was the attorney for the unit owners 'cause the unit owners were afraid to step forward. I brought the action on behalf of the unit owners as a corporate action, what's called a corporate derivative action, because the money that was lost was the money of the corporation. An individual cannot really bring a right of a loss to a corporation; you must bring it for the corporation.

Somebody said, `Geez, that's very creative.' And I said, `Well, if you know the law, I guess it helps.' But anyhow, [that lawsuit] got around the state. People on the condominium task force looking for condominium reform wondered about that, 'cause they heard about it and I started getting phone calls about it.

[State] Rep. [Julio] Robaina [R-Miami] was at that time holding a task force throughout the state. People would come in and talk about their situations and somebody mentioned my case. Then I was contacted by different groups to get involved in their groups to help change the law so that people could better live in condominiums without the fighting and bickering problems and litigation. They sort of liked my personality or my approach, and, of course, I didn't charge them.

Then came the situation where the Florida Legislature passed the ombudsman act, and they also passed the condominium advisory committee, and slid that into the new condominium act. When it was passed, everyone was calling up, saying, `put your name in for the ombudsman, put your name in for this, put your name in for that.' I said, `I really don't want a job. My life is pretty nice the way it is without any aggravation.'

I put my application in to be on the advisory council 'cause it sounded like fun, and I really gained more knowledge and expertise about condominiums just with the case that I was doing for the unit owners. I was contacted by the governor's office: `Will you change your application to ombudsman?' I said sure, but I would like to leave it in both spaces, so that I don't get locked out by jumping from one to the other.

Time went by, and the advisory council was appointed, and I wasn't on it. I said maybe that's better, then all of a sudden I got the appointment for ombudsman and everybody was happy for me. It's like -- Oh, gosh.

With an analytical mind and with my friends from the brain trust [an informal group of law experts at Nova Southeastern University's law school whom he consults], I was able to come up with a division of the work that the ombudsman is responsible for.

I broke it down into three aspects: Liaison and dispute resolution is one. Education and assistance is No. 2. And the third one is reports and recommendations.

Reports and recommendations would be to the Division of Condominiums, the Division of Business and Professional Regulation, governor and Legislature and the advisory council. I am attached to [DBPR], but I am not employed by them. I'm employed strictly by the governor, I answer only to the governor.

The most daunting [of the three categories] is reports and recommendations to change the system. It's a little bit early because I'm still gleaning information from the phone calls I have and the interplay I have with condominium owners.

I get a few people that say, `You're against the boards.' I'm not against the boards. I'm against the boards' acting outside their authority. And I have to impress upon them that `you're a corporation. The board is running a corporation,' for the unit owners. You can't be running it as policemen. You have to run it as corporate officers. These people don't understand that.

So this brings in the aspect of education. Education is the most important thing, that everybody understands what their duties and responsibilities are. Not only the directors and the officers, but also the unit owners. It's up to the unit owner to notify his director, much like a citizen would have to notify his representative, that we have a problem in our community that you should be aware of and do something about. The unit owners have to notify the directors what the problem is, and then the directors have to get together and resolve it and tell the president, `You issue the order.' Just like the executive branch and the legislative branch.

And, of course, we want to resolve it ourselves instead of going to court, to resolve issues that we think are important to us in and amongst ourselves. The problem that I've encountered is that there are always two sides to a story.

Q. At least.

A. The thing is, like with [a] contract, there's your side, there's your opponent's side, and there's the way the judge sees it. So there's three sides.

What happens in these communities is that they get polarized. You get a 50-50 split and you have discontent. They shouldn't be fighting amongst each other. They should be together and the board should keep them unified. These people have a lot of energy. This energy should be directed not only to their board of directors to do something, but also toward the city and the county to do things for their association.

But if you're just going to sit around and fight with yourselves and not tell the senator or representative anything, nothing's going to happen on your behalf. So you should be unified, you shouldn't be polarized.

This is probably my dream.

Q. What do you think stands in the way of that kind of understanding that they can act?

A. Education. They just don't know that they can channel that energy.

Then you have people who want to be leaders, or are natural leaders. But they want to do it their way, not the way that it really should be done according to Florida law, or according to corporate law, or even according to fairness. They don't want to listen to somebody else's opinion. And that's not a good leader.

Leaders have to know what their limitations are. It's not so much their limitations. It's that their directives are given to them by their constituents. They don't tell their constituents what to do. The constituents tell them what to do.

Q. Our reporter who covers elder affairs said she felt one of the things that happens with some older people is that they're losing control over a lot of things in their lives, so they tighten their grip on what they can control. In condominiums, what they can control is the rules. Do you see that sort of thing?

A. They should be able to control their community -- to a reasonable level. Not to the point where you're always hollering at your neighbor because she's sitting on her balcony having a cigarette and you don't like smokers. That's beyond reason.

And when you get older, you get more and more adamant about your feelings. If they were a penny pincher when they were young, they're going to be impossible with a nickel when they get old. A lot of things compound.

My position is to try to defuse situations before they get to a level where litigation is involved. I'm basically under attack. I suppose it's going to blow into full-blown war someday, on some issue where I'll make a policy, which I'm allowed to do under the statute. I make policy according to certain situations.

There are battles going on right now about what my position is. I don't have the power in my position to invoke any penalties. It's only my position to, not investigate, but to determine the problems and try to make a resolution. And if there's a problem that the statute doesn't cover, I should make the Legislature aware that there's a problem here and propose how to close this problem up.

Q. Condominium owners sometimes feel powerless. When there's a dispute with the board, the board hires an attorney to represent it, the owner has no one, and everyone is assessed to pay the attorney for the board. Do you see this as one of the reasons your position was created?

A. That was actually the reason. There was a tremendous disparity in the ability to resolve an issue.

You have to understand the playing field here. The association, which is governed by the board, has a deep pocket. They have the authority to hire attorneys at $300, $350 an hour that specialize in condominium law to give them an opinion about a certain situation. These attorneys have a propensity to give an opinion of the situation to the board the way they want to hear it. So now they want you to support them and make them even stronger and more powerful with your opinion, `Our attorney said …'

Q. Do you think people who buy condominiums understand how much responsibility they have?

A. Absolutely not. That's one of the problems. When you buy a piece of property, you buy into the covenants of the property. You buy into the county codes, you buy into the city codes. Those are documents that you have to be aware that you cannot do certain things in this area.

When you buy into a condominium association, you have to go by the covenants. Now here's the problem: The covenants are an inch thick. They're called the declaration of condominium, the by-laws, the articles of incorporation. It's in legalese. And when you're given that, it's `read this and sign your closing papers.' You're buying into the restrictions and rights that you're handed.

Which brings up an interesting thing. It's not gone over well, my idea, my proposal that all the condominiums from a certain day forward shall have the same covenants. So it'll be unifying covenants, which will streamline the process. So every time there's a policy made from a situation that arises, it will cover anything that comes up in the future. So anybody that has a problem, hey, this is the way this is handled and has been for the last five years. And it's the way it's gonna be handled in the future. Oh, yeah, you're gonna get creative attorneys to twist it around and so on and so forth, but it's like a law. The law's made and this is what you have to go by until somebody finds a loophole. Then, when you find a loophole you have to close it.

Q. But you have a difference between a condominium association that covers six units and a Century Village or a Kings Point, where you have hundreds of units. Could you have the same covenants?

A. That's a dream. That actually is my dream. To make it very simple. And simple to the point that a layman can understand. There isn't any difference between the large ones and the small ones when it comes to covenants. The covenants either apply or you never have any use for them. But there should be standard covenants, standard by-laws. And then standard procedures for everything.

Q. You said your dream would be to have common covenants. Is that what you would like to be remembered for as the first person to hold this position?

A. My dream is to streamline things. To make it simple. There's nothing wrong with keeping it simple. Not more laws. We don't need more laws. But we need the ones that we have made a little more definitive so there's no creative interpretation. Believe it or not, throughout all the condominiums in Florida there aren't that many problems that are unique to a condominium. Of course, every day I think I've heard them all and then something else comes up. But it's only a variation on a certain theme.

Once you have the theme, or the category, I want people to be able to go on the Web site, and under `complaints' for frequently asked questions, they find their problem, click on it, and there's their resolution and maybe some legal opinions regarding [that problem]. Not just individuals, but the boards. Then you can get this resolution without having to deal with attorneys.

Q. Do you think attorneys will sit still for something that affects their income possibilities?

A. No. This is the war. For condominiums, it's not a realm where attorneys should be involved. It's people who want to live together in a community. They don't want to fight with each other, and they don't want anyone telling them, `Our attorney said we're gonna win.' The other one says, `My attorney says I'm gonna win.' You know who ends up winning?

Q. The attorneys.

A. I didn't say that.

Interviewed by Editorial Board member Ann Carter

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BACKGROUND

Virgil Rizzo, the first statewide condominium ombudsman in the nation, graduated from the University of Pittsburgh in 1959, then earned a medical degree from the University of Basel in Switzerland. He was practicing medicine in Lakeland when he was drafted into service in Vietnam.

After his service, he came to South Florida. He later earned a law degree from Nova Southeastern University.

He is now retired from both professions.

Contact him through the ombudsman's office at 850-922-7671 or by e-mail at [email protected].