TC Palm Q&A Column, May 5, 2017

Editor’s note: Attorneys at Goede, Adamczyk, DeBoest & Cross, respond to questions about Florida community association law.  The firm represents community associations throughout Florida and focuses on condominium and homeowner association law, real estate law, civil litigation, estate planning and commercial transactions.

Q: I own a townhouse in an HOA community.  During my purchase interview, the Rules and Regulations were explained.  During the last few years, I have noticed the Board Members violating the Rules and Regulations of the complex and not enforcing same.  What rights would I have as a homeowner as there is no quality of life where I live any longer?  I pay my maintenance on time and yet have no rights, or so it seems.

Is there any type of legal action that I could take that would not be too expensive for me?  Unfortunately, moving is not an option as I would lose money on my townhouse.  I realize the Board members, along with the Property Manager, are violating their Fiduciary responsibilities, however, I have no idea what can be done.  Can suggestions be offered?

– B.K., Pompano Beach

A: Section 720.303(1) provides “officers and directors of an association have a fiduciary relationship with the members served by the association,” which includes enforcing the governing documents of the association, and its rules and regulations in a uniform, non-selective and non-discriminatory manner.   Section 720.305 requires an association (and its members) to abide by the association’s governing documents and its rules and regulations, and authorizes a member to bring an action against the association in the event it violates the provisions of the governing documents and/or the association’s rules and regulations.  If a lawsuit is filed, the statute also grants the prevailing party entitlement to an award of the attorney’s fees incurred in bringing the lawsuit.  Therefore, those statutory provisions provide the legal support for a claim based on the association’s breach of its obligation to enforce the rules of the Association.

However,  before a lawsuit can be filed, section 720.311 requires that the person who intends to file the claim must serve the association with a written demand for pre-suit non-binding mediation which describes the nature of the claim, the facts supporting the claim, the names of mediators who the claimant would agree to use as the mediator, their contact information and hourly charges, and  a 20 day time period for the association to provide its written response agreeing to engage in pre-suit mediation. The cost of the mediation is shared equally.  The mediation session is called “non-binding” because the parties are not required to settle the claims in dispute, simply attend the mediation conference with the good faith intent to use their best efforts to settle the dispute.   If the claim is resolved at the mediation conference a settlement agreement is written and signed, and the claim is considered resolved. The settlement agreement is considered a contract and is enforceable if any of its terms are violated.   If the claim is not successfully resolved at the mediation conference, then the mediator issues a report confirming that the parties mediated the dispute but reached an impasse.   If an impasse is the end result of the mediation conference, then the party who lodged the dispute has the right to then file a lawsuit.  Unfortunately resolving disputes by filing a lawsuit is very costly.

There are alternatives  to filing a lawsuit: (a) hire a lawyer for a limited purpose, such as sending the Association a demand letter setting forth your concerns and the corrective action you would like implements, sending the pursuit non-binding mediation demand, and attending the mediation conference; (b) obtain a vote of a majority of the owners to remove the directors under section 720.303(10)  (The instructions and forms required can be obtained by logging on the Florida Division of Land Sales, Condominiums and Mobile Homes web site at “myfloridalicense.com/dbpr/lsc/index.htm”);(c) submit a petition  to the association signed by 20% of the homeowners requesting that the board of directors to convene  a meeting , the agenda to which must be  described in the petition under section 720.303(2)(a); (d) attend a board meeting to express your concerns.  (Section 720.303 (2)(c)(2) provides members with the right to speak at board meetings on agenda items); and/or (e) running for the board so you voice can be heard as an elected director.

Ronald E. D’Anna, Esq., is Partner of the Law Firm Goede, Adamczyk, DeBoest & Cross.  Ask questions about your issues for future columns, send your inquiry to: question@gadclaw.com.  The information provided herein is for informational purposes only and should not be construed as legal advice.  The publication of this article does not create an attorney-client relationship between the reader and Goede, Adamczyk, DeBoest & Cross, or any of our attorneys.  Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein.  The hiring of an attorney is a decision that should not be based solely on advertisements or this column.