720.303(2)

Secret Board & Committee Meetings

I know it’s been a long time since I wrote a blog, but I have to say it’s not due to laziness, but rather success.  I have come up with a creative way to deal with HOAs and COAs (condo associations) pre-suit and business has been brisk.  I did answer an interesting question on www.avvo.com just now and I feel I need to share this one.  Here it is:

My HOA has recently enacted a “fine committee” after the recent change in law (720.305)2). I have tried in vain to find any details of what this committee does, its scope of work, a list of violations and fines and who the members are. There is nothing in meeting minutes and nothing has been added to the documents of the association that I can find. Does the HOA have the obligation to notify all homeowners and post the detailed information and process of each committee it forms? Or can it operate in secret on a need to know basis? They have done something similar with a very brief bullet in one newsletter that refers to a “stated late fee and collections Board policy” none of which I can find anywhere. Neither issue is covered in the rules and regs. Thank you for your time.

Your question set off numerous red flags for me when I read it.  The whole purpose behind many of the revisions to Chapter 720 of the Florida Statutes, the Homeowners Association Act, was to create transparency.  When governments operate in secret there is a chance for corruption and dictatorships to form.  The same goes for HOAs, which despite court rulings, rule like quasi-governments.

First, your HOA cannot impose fines against the owners unless the authority to do so is included in the governing documents (Declarations, Bylaws and Articles of Incorporation).  An older version of the statute provided rules for fining “if the governing documents so provide.”  The statute was revised to remove the language allowing fines to become liens and foreclosures if unpaid.  Later it was revised to add that language back in if unpaid fines were more than $1000, but it also did not include “if the governing documents so provide.”  This did two things.  The HOAs began claiming they had a right to fine by statute and instead of fines being $100, we now see fines of $1000 and more.  The HOAs do not have a right to fine by statute.  The statute in existence at the time the HOA was formed governs unless there is language in the HOA documents which say it is governed by Chapter 720 “as amended for time to time” or something similar.

All committees are required to keep minutes and if the committee has decision-making authority, then the meetings must be open to members and properly noticed.  The exception is fining committee hearings, which are not meetings, in which an owner is requested to appear and the committee will consider a fine.

Board meetings and committee meetings which will consider and adopt policies must be open and properly noticed.  Any meeting which will adopt a policy or rules and regulations affecting parcel use must be noticed by sending the owners individual notices to their address of record 14 days in advance of the meeting.  Policies and rules cannot be adopted without an open board meeting.

If the Board of Directors is meeting in secret to adopt policies and rules, or adopting these by corresponding with email, they are violating state law.  The problem is there is no agency to regulate the HOAs and their violations are a civil matter, not a criminal matter.  Your only recourse is to ask for pre-suit mediation and then sue them if they don’t settle, or start talking to your neighbors to get involved — they need to wake up and pay attention to what is going on now.   If they wait until it affects them personally, they are liable to find themselves on the wrong end of a court

HOAs – Don’t Mess with the Disabled!!!

It’s that time of year when all the community association law firms start blogging about the legislative updates to the Florida Statutes that will be enacted July 1, 2014.  It’s interesting to read the various blogs because they always include what the writer interprets the meaning of the new statute will be and, if you read more than one blog, you get a more than one interpretation (flag on the play — litigation imminent!).

Here’s one that should be real clear and I credit John and Kim Whitt for standing firm and seeking justice. They proposed to our elected leaders to add two words to Fla. Stat. 720.303(2), which requires meetings to be open to all members. Those two words “and accessible” make a world of difference to people like John who is confined to a wheelchair.  Common sense and compassion for other human beings would lead you to think this is not necessary; after all, the Fair Housing Act requires HOAs to provide reasonable accommodations for those who request it in order to attend meetings. Well, no one goes around accusing HOA board members of using common sense with any regularity.  In fact, all I hear all day is about conduct that is not only senseless, but unreasonable, offensive, insensitive and ruthless.  But I digress.  While those two words didn’t make it into the statute, a version of it did:  “A meeting of the board must be held at a location that is accessible to a physically handicapped person if requested by a physically handicapped person who has a right to attend the meeting.”

This was no simple task and I congratulate the Whitts and our political leaders for accomplishing this. At this point I bet you’re wondering what led to this.  I am here to tell their story — the real story.  Not some version with a spin on it to make the people think it was an innocent mistake.

John and Kim Whitt are wonderful people.  They are nice people.  They are not troublemakers.  When they bought their home in 2009 in a beautiful, rural community in Pasco County life for them changed. The community is comprised of 45 or so well-kept spacious homes on spacious lots, many of which are adjacent to wetlands.  Everyone’s dream home, right?  The Whitts were eager to be involved in the community and to get to know their neighbors.  One obstacle faced them.  The HOA held it’s meetings, as it did for a number of years, in a vacant lot with a cattle grate, livestock fence and extremely soft soil.  The meetings are held in a far back corner under trees with roots that made it impossible and still make it impossible for John to attend the meetings.  John asked the board if the meetings, not all, but at least some, could be held somewhere so he could attend and even offered his house.  He was refused.  A former board member, who is a contractor, offered to install a concrete pad a no charge to accommodate John’s request.  The board voted against this. Of course in their version they offered to install the concrete pad and John refused, but that’s just the usual HOA spin on facts to try and get people to believe they meant well.  John even offered the HOA to remove him from membership and the deed restrictions so the HOA would not have to comply. It’s not like he was going to start a pig farm at his beautiful home.  Pig farms are prohibited by zoning ordinances in this area, but more on that later.  The HOA spins the tale the Whitts never wanted to be part of the community and when their request to be excused was denied they resorted to pushing the access to meetings as the issue.

Here we are five years later. The Whitts sued the HOA, but lost. I won’t rant about that until I’m ready to relinquish my license to practice law.  The former board member/contractor and two other couples who own homes in the community sued the HOA because the deed restrictions had expired while the Whitts were litigating and were not properly amended to extend them.  They won on summary judgment.  No HOA.  The HOA is appealing, but going through the revitalization process as the same time. They are promoting revitalization by claiming if the deed restrictions are not revitalized they will be a community with pig farms.  I don’t think any of the owners have a pot-bellied pig, much less a pig farm, which is illegal in this particular area anyway.  On top of that, the HOA has held the Whitts out in ill will to the neighbors every chance they get, blaming them for the high legal fees they incurred with a huge unpaid balance.  No one really knows what that balance is because not only will they not show the owners the amount due and the balance changes frequently.  If they think the HOA won, how come they owe so much money in legal fees?

The Whitts may have lost the case, but evidently a lot of people, including members of the Florida Legislature and some decent people in their community, thought they shouldn’t.  They were successful in getting the statute amended despite the HOA attorney saying they wanted to create the “Homeowners Association with Disabilities Act.”  They have suffered for it.  Homeowners in their community who do not even know them despise them based on the tale the HOA spins about this — a HOA that has been ruled to not have deed restrictions.

And just for giggles — the HOA now claims it is still a mandatory association without deed restrictions because the Articles of Incorporation and the Bylaws are still valid.