Critics say plan to regulate homeowners groups lacking
Article Courtesy of the Palm Beach Post
Published January 19, 2004
BY Josh Mitchell

Homeowners who have spent years fighting their neighbors over everything from house paint colors to how to fly Old Glory rejoiced last summer when Gov. Jeb Bush ordered the state to look into abuses of power by homeowners associations.

But as a task force prepares a report to submit to the governor next month, activists are grumbling that its recommendations will do nothing to prevent abuses of power.

The task force will meet for the final time Jan. 28 and is expected to recommend more homeowner protections, such as greater access to community records.

But activists say the proposed legislation lacks teeth because it will not call for a state agency to regulate and discipline homeowners associations. Without the government hovering over them, community boards will continue to spend dues on pet projects and hold secret meetings in living rooms, critics say.

"The task force has definitely failed its mission. Nothing was done to help consumers and nothing will be done," said Jan Bergemann, a task force member and president of the grass-roots group Cyber Citizens for Justice in St. Augustine. "Any kind of regulation has no meaning without enforcement."

Bergemann and other activists want the state to treat homeowners associations the same way it treats condominium associations. Since the early 1980s, the state has reviewed complaints from residents of condo associations, often issuing fines -- and sometimes conducting recalls -- when boards act unlawfully.

Homeowners associations have no such oversight, despite the fact that more than 5 million Floridians are members of them -- including a heavy concentration in Palm Beach County. That number is expected to jump to 8 million by 2010.

State law already requires homeowners associations to have regular board meetings, budgets and certain records open to their members.

But some homeowners say their association boards have acquired too much power. They liken the situation to a local government that operates without checks and balances.

Some say no agency needed

In a much-publicized case, George Andres has spent four years fighting his Jupiter homeowners association over displaying his U.S. flag. The association forbid the Marine Corps veteran to fly the flag from a freestanding flagpole, saying any flags must be flown from poles bracketed to the homes.

A judge in September ruled that the association can foreclose on Andres' home to collect more than $25,000 in legal fees. He has appealed.

Andres' dispute inspired Bush to commission the task force.

Julie Baker, deputy secretary of the state Department of Business and Professional Regulation and task force co-chair, said the governor wants to reduce the number of homeowner problems. 

But she reiterated that the Republican administration's overall vision is less government and less regulation, and that a new agency for homeowners associations is not favored.

"Our mission is to harmonize relations," Baker said at a task force meeting last month in Tampa. "The governor's position typically is doing things with the least restrictive means. Off the bat, it's very hard to convince the legislature and the governor to increase fees."

Baker and other officials say homeowner problems can be curbed without creating an agency.

They point to a provision in the upcoming task force report calling for a system in which the state would select experts to mediate, and sometimes arbitrate, disputes. Homeowners would pay an initial fee of $100 to file for mediation. 

Other recommendations include preventing associations from foreclosing on homes to collect fines and holding developers responsible for problems in "common" areas, such as a clubhouse's leaky roof. 

"We believe that would take many, if not most, of the disputes out of the courts," said William Sklar, a West Palm Beach lawyer and task force co-chair.

Sklar said the 15-member task force voted against the creation of a state oversight agency because of "financial concerns." He added, "There's a real question of what this agency will do. Will it resolve all the issues between boards and their members? Probably not."

Homeowner advocates say the task force is stacked against them. Three members are homeowners, and the rest are lawyers, government officials and members of the real estate industry.

Bergemann contends that an oversight agency could be paid for by a yearly fee of $4 per homeowner. The state receives a similar fee from its estimated 3.25 million condominium owners to oversee condominium associations. 

Baker's department has 28 investigators who review condominium complaints, ranging from residents being denied community records to board members spending association money on personal items such as computers.

Ross Fleetwood, director of the division handling condominium complaints, estimated that 85 percent of them -- there were 16,000 last year alone -- are resolved through mediation. 

Conversely, when homeowners feel wronged by their board, their primary recourse is to file a lawsuit, consuming more time and money, activists and government officials agree.

"We've heard stories from many people who didn't know what they were getting into" upon joining a homeowners association, said Barbara Katz, a suburban Boynton Beach resident and task force member. "There has to be some sort of place for them or some remedy."

Group seeks own legislation

Experts say the state does not oversee homeowners associations because they are a relatively new phenomenon -- or at least the disputes associated with them are relatively new. 

While condominiums always have had the obvious need for regulation because multiple units share walls and roofs, homeowners once lived more amicably in roomier communities.

Thus, state law on condominium associations spans 90 pages; while homeowners associations are addressed in eight pages.

"Condominium development has been going on in Florida for over 40 years," said Joe Adams, Fort Meyers attorney and task force member. 

He disputes the need for a state oversight agency but supports protections such as a developer being held accountable for promises to the homeowner. "With HOAs, there have not been similar statutes, except in the last several years. People who live in HOAs receive second-class rights."

Sklar said the legislation proposed by the task force will "level the playing field" for homeowners.

But Bergemann says that won't happen.

Bergemann says his group, which has more than 1,500 members, will propose its own legislation, demanding a state oversight agency.

"What they do is they clarify a little bit about how things should be done," Bergemann said of the upcoming task force report. 

"Now you create more laws. But if nobody obeys, what then? You go to court."