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Article Courtesy of The
Orlando Sentinel
By Trevor Fraser
Published November 18, 2021
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Thousands of residents in a 55-plus Poinciana neighborhood have been awarded
nearly $34.8 million in a civil case after a state judge ruled that a developer
was charging them improper homeowners’ association fees.
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“It’s been a long
battle,” said Lita Epstein, chairman of the Poinciana
Community Development District.
The class-action suit has been in the courts since 2017 and
includes more than 5,000 residents of Solivita, which is
part of the massive Poinciana development in Polk and
Osceola counties.
The judgment, issued Nov. 2 by Polk County Circuit Judge
Wayne Durden, could mean up to $10,000 for each resident,
and even more once interest is calculated, said Carter
Andersen, an attorney for the plaintiffs.
The case began in 2015 when the developer Avatar Properties
proposed a bond measure to sell a clubhouse, pools and a
tennis court to the resident-run CDD for $73 million. But a
valuation of the amenities by a certified appraiser found
them only to be worth roughly a quarter of that.
In the course of reviewing the proposal, attorneys found
what they believed to be improper fee collections by the
developer.
According to the lawsuit, residents of Solivita were not
only required to pay HOA fees but also two separate fees to
the Solivita Club, which maintained the amenities and was
owned by the developer Avatar. It was a subsidiary of AV
Homes, which was purchased by home builder Taylor Morrison
in 2018. An
unsigned email from Taylor Morrison said because of the
litigation the company would not comment. Andersen says the
developer has told him it plans to appeal the ruling. |
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Lita Epstein at her Poinciana home in the community
of Solivita on Tuesday, November 9, 2021. Epstein was the lone CDD
vote against the bond measure that began the investigation that led
to a class action lawsuit filed in 2017, against Avatar Homes.
Plaintiffs have been awarded a $35 million judgment in a class
action lawsuit in regards to improperly collected HOA fees in
Solivita.
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Epstein, 68, had lived in Solivita since 2005. She ran for the CDD board in
2016 on a platform opposing the deal. “I was the lone voice against it for a
while,” she said.
Due to her position, Epstein was not a litigant in the lawsuit.
Avatar had proposed using one of the club fees to finance the bond sale to
the CDD. But lawyers argued that the fee of about $86 per month per
household was already a violation of Florida statutes regarding HOAs.
The Florida Homeowners Association Act prohibits developers from creating
deed restrictions that generate perpetual profit for mandatory memberships.
“(I)n this case, the illegal club membership amounted to over $5 million per
year in the most recent years,” Andersen wrote in an email to the Sentinel.
Andersen said the fees qualified as mandatory since the developer had cited
failure to pay them as a cause in foreclosure cases in the community.
The bond was approved by the CDD but formally withdrawn by the developer in
2018 after a community uproar.
While the fees went back to the early 2000s, plaintiffs were only able to
ask for the return of fees going back to 2013 because of the statute of
limitations.
Norm Gundel, 69, was one of three named plaintiffs on the suit. He says he
is thrilled with the judge’s ruling, which he says will be a boon to the
community.
“It saves every homeowner in the community approximately $1,000 per year,
and refunds those same illegal fees all of the way back through April 2013,”
he said.
Andersen and his co-attorneys have two other lawsuits for similar violations
pending, one on behalf of the residents of the Bella Lago Club in Osceola
County and one for the residents of the Lakeland subdivision of Terralargo.
“We believe that the judges in those two other cases will come to the same
conclusion – because Judge Durden decided the legal issues just right,”
Andersen said.
Gundel says that, though the road was difficult, he recommends residents in
similar battles stick it out together.
“Fighting injustice against a huge company is very difficult,” he said.
“[The other named plaintiffs] and I could not have done this without the
support of many other Solivita community members.”
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