By
Inger Garcia
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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 |
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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!
WINDOWS
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.
BIG BROTHER IS WATCHING
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.
NOTICE BY CERTIFIED MAIL
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?
SUGGESTED SOLUTIONS
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.
About Inger Garcia:
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,
Tel.:
954-394-7461,
or
Fax: 954 446-1635.
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
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