It seems so, especially in Palm Beach County!
We all read about the legal horror stories of the Boca View Condominium, where fights over record inspections went on over years and are obviously still not quite finished, despite appeals court decisions and final rulings. These legal fights continued for years, not only in State Courts, but also in Federal Courts.
And just around the corner from the Boca View Condominium another association, the NEWTH GARDENS CONDOMINIUM ASSOCIATION, INC., felt as well inclined to spend hundreds of thousands of dollars in legal fees to fight a record inspection request from an owner.
For seven years this legal battle went on, starting with a mandatory non-binding arbitration. The arbitrator clearly sided with the unit-owner. At that time common sense should have dictated to end the dispute -- at a total cost of $675.00 for the association.
But instead of closing the dispute, the association filed a complaint for a Trial de Novo.
At the Trial de Novo bench trial the judge believed the testimony of the board president, claiming he send a letter by mail to the unit-owner, even if the unit-owner claimed that he never received such letter.
The judge’s excuse not to apply a “presumption of the association’s willful failure to comply with FS 718.111”: … since the letter was placed in the mail and wasn’t received, I don’t think I can find any willfulness on the part of the association to deny access to the records or not supply the records, pursuant to the request.”
Isn’t it funny that in this case a judge just believed a board president claiming that he mailed a letter by regular mail, but unit-owners are required to send their requests by certified mail in order to prove that a letter was mailed?
Why do so many judges always think that they have to protect associations, even if they do things wrong, even violating the Florida statutes?
The unit-owner appealed this Trial de Novo ruling and won the appeal in front of the Fourth District Court of Appeals of the State of Florida. In the CONCLUSION OF THE COURT’S RULING the appeals court’s judges clearly stated that “WILLFULL FAILURE” has to apply and it would have been up to the association to prove that such a letter was actually sent to the unit-owner, since the association even failed to respond to a notification by the unit-owner that he has not received a response.
Oh, by the way, is it a coincidence that the community association manager in both of these associations was Eric Estebanez (Pointe Management Group,Inc.)?
The record inspection laws in both the CONDO ACT [FS 718.111(12)] and the HOA ACT [FS 720.303] are very detailed and describe not only which documents are official public records, but as well that owners have the right to inspect these records and how to proceed with record inspections, even creating a penalty in case the association doesn't comply.
Why does it seem to be so difficult for attorneys and judges to quickly end such legal battles before they cost hundreds of thousands of dollars to the owners? The language is clear and can even be understood by somebody who doesn’t have a legal background.
That leaves the questions:
Why do we see so many very costly lawsuits
dealing with such a simple issue?
Is it all about the profit of these law firms or do these
associations have something to hide?