association abuse

Homeowner association feuds draw state scrutiny

By Joe Kollin 
Staff Writer, Sun-Sentinel, Fort Lauderdale, FL 
Posted October 19 2003 

When their neighbors voted to restrict rentals at their Amelia Island
condominium, Stephen and Judy Comley began a battle that landed in the
state Legislature.

At the same time, George Andres' fight with his Jupiter homeowner
association over his U.S. flag attracted the attention of Gov. Jeb
Bush.

 
The two disputes led to two state task forces to determine whether the
boards of directors of condominium and homeowner associations abuse
their power and whether laws are needed to rein them in.

What the committees recommend, if anything, could affect the 5 million
to 7 million Florida families who live in buildings and communities
with mandatory associations.

Bush and House Speaker Johnnie Byrd contend the task forces are needed
because boards have gone awry, the laws written in the early 1990s to
regulate boards may not go far enough and homeowners need more
protection from their boards.

Rep. Julio Robaina, R-Miami, convened a hearing in Miami last month.
Despite a lack of publicity, it attracted 400 angry condo owners.

"We've opened a Pandora's box," Robaina said. "We're hearing
complaints about everything from fraud in elections to no
accountability by boards to nepotism to criminals serving as managers
to two and three special assessments a year. There's no enforcement
because the state doesn't have any laws to get investigators out to
properly investigate and get state attorneys involved.''

The House committee, which consists of seven state representatives,
plans to have its next meeting in Broward County, but has not yet
determined a day or location.

The Comleys, of Frye Island, Maine, helped convince Byrd that the task
force was needed.

The couple, who paid $465,000 for their North Florida apartment in
1996, were angry because more than two-thirds of their neighbors in
the 28-unit complex voted to change the renting rule.

The couple had been renting the apartment to tenants by the month, but
the new rule set a six-month minimum. Unable to find tenants to rent
that long, the Comleys feared they would be forced to sell the unit.

After the referendum, the Comleys told neighbors of their plight.
According to Stephen Comley, more than half the owners agreed to
change their votes to allow his monthly rentals, but the condo board
refused to allow a new vote.

The Comleys then asked legislative leaders to change state condo law
to include what Florida Supreme Court Justice Peggy Quince called an
"escape" provision. Although the court in 2002 upheld the right of
owners to rewrite their rental rules, she realized this could deprive
owners of "valuable rights" they had when they purchased. She
suggested the Legislature change the law.

Following the Comleys' visit, Byrd created the committee.

They also went to see Senate President Jim King, R-Jacksonville, who
asked one of his committees to look at writing an escape provision in
the condo law.

As the House and Senate leaders were working, Bush, acting on his own,
ordered the Department of Business & Professional Regulation to create
a committee "to examine the challenges that [homeowner] associations
face."

The 15-member committee, which receives no state money to operate,
includes owners, directors, attorneys and real estate specialists. So
far, it has met in Tallahassee and at the University of Miami Law
School in Coral Gables.

Bush acted after learning that Andres, a former Marine, could lose his
house because he insisted on flying his U.S. flag from a 12-foot
flagpole instead of from brackets attached to his Jupiter house. The
association's rules allow flags only with brackets.

After Andres refused to take down the flagpole, the Indian Creek
Homeowners Association Phase IIIB imposed fines. He refused to pay and
the association filed a suit to foreclose to collect more than
$300,000 in fines and legal fees. The case is pending in the 4th
District Court of Appeal in West Palm Beach.

Bush wrote to Andres, saying he was "shocked at the difficulties you
confronted merely because you wished to fly a small United States flag
in front of your home."

Homeowner associations in Florida have more power than condo
associations and city governments. Neither a city nor a condo can
foreclose on a house when the owner refuses to pay a fine for
violating a rule or ordinance. Homeowner associations can and do.

The two Florida committees are expected to issue reports before the
start of the legislative session March 2.

Not everyone agrees on the need for the committees or that new laws
are the answer.

Condo law has evolved during 30 years and now is 90 pages long. The
law governing homeowner associations is nine years old and 14 pages
long.

"These communities are the most over-regulated and over-legislated in
the state," said Gary Poliakoff, whose Fort Lauderdale-based law firm
pioneered condo and homeowner law and represents 4,000 associations in
Florida. "We dictate to private property owners what they can and
can't do in their communities and I think we've reached the point
where it is difficult for residents to function because of the degree
of regulation that exists.''

What is needed instead of more laws is enforcement of those on the
books, he said.

Jan Bergemann of St. Augustine is president of Cyber Citizens for
Justice, a grass-roots organization fighting for the rights of owners
in both condo and homeowner associations. He suggests the state create
an agency similar to the Nevada Commission for Common-Interest
Communities to enforce the laws.

It should, he said, regulate all mandatory association housing and be
supported with a $4 annual fee from each unit owner.

But that isn't likely, according to Joe Adams, a Fort Myers-based
attorney who serves on the homeowner association task force.

Bush's marching orders to his task force were to "make recommendations
for legislative change consistent with Gov. Bush's vision for
government and regulation."

Bush's vision is less government and less regulation. 

Joe Kollin can be reached at [EMAIL PROTECTED] or 954-385-7913.


On the web at:
http://www.sun-sentinel.com/news/local/broward/sfl-shomes19oct19,0,1573159.story