Cyber Citizens For Justice Weblog

A Bill before the Florida Legislature (HB1365) would grant extremely broad powers to condominium boards following damage to the condominium property caused by a significant event, such as a hurricane.

The powers granted are so broad as to:

• Permit a single director to appoint and grant director authority to anyone (not even necessarily an owner) for the purpose of assisting with recovery.
• Practically waive all requirements for posting notice of board and membership meetings.
• Borrow money secured by association assets without owner approval.

The motivation for this Bill is laudible. Associations clearly need to continue functioning following a disaster, when some or many of its owners and directors have truly become unavailable. But such broad powers can be abused - and Florida condominiums do have a history of abuse by overly zealous directors. And where is it defined what the definition of “unavailable” is? A minority of directors (or even one director) could easily decide that the majority of the board was “unavailable” following a disaster, coopt their own cronies onto the board, post notice of meetings in obscure places, then borrow money or make special assessments to fund their pet projects without any oversight at all.

Instead of granting such such broad powers, the bill should have require associations to provide for alternate directors, alternate posting locations, and alternate procedures before a disaster. Such alternatives would then be subject to the oversight of legitimate boards and the owners, and be approved by proper majorities.  The same bill also should rigorously define “unavailable” and restrict post-disaster decisions by a partial board or alternative directors to emergency safety, health and welfare measures.

As currently proposed, HB1365 is seriously defective. Please contact your Florida State Senator & Representative (find their names here) and ask them to vote NO to HB1365.

Actually, it’s a shame that we homeowners have to ask for a “Homeowners’ Bill of Rights” in “The Land of the Free” – the United States of America. Even our Supreme Court recognized (quote):

“Special respect for individual liberty in the home has long been part of our culture and our law.”

But it seems that quite a few of our citizens (and especially “special interests”) have forgotten that this country was founded upon the principles of FREEDOM, as established in the United States Constitution. Otherwise, I can’t find a reasonable explanation that New Jersey’s Supreme Court will hear a lawsuit to decide whether or not homeowners living in an association have lost their constitutional rights, when they signed a contract and agreed to become members of a homeowners’ association. That’s what the Community Associations Institute (CAI) – the trade organization for lawyers and managers — claims in their Amicus Brief! When I first read that an attorney had stated that we owners signed our constitutional rights away at the gate, I wasn’t sure if he was joking or not. But it seems these attorneys – out for profit at the expense of the homeowners – are really serious!

Numerous complaints from AARP members – meaning mostly homeowners over age 50 – finally caused this large organization to get involved by publishing:

The BILL of RIGHTS for HOMEOWNERS in ASSOCIATIONS

(Subtitled: Basic Principles of Consumer Protection)

which can be read here.

David Kahne, the bill’s author, spoke on September 9 on the talk show “On The Commons”. Kahne is a well-known attorney from Houston, Texas who fights for homeowners’ rights and against frivolous foreclosures in associations. He explained the reason for writing this bill and what this bill will achieve, if enacted by the state legislatures. He emphasized just how important for homeowners this bill and its ten main sections will be when it is enacted.

These are the main RIGHTS this model statute is asking for:

• The Right to Security against Foreclosure
• The Right to Resolve Disputes without Litigation
• The Right to Fairness in Litigation
• The Right to Be Told of All Rules and Charges
• The Right to Stability in Rules and Charges
• The Right to Individual Autonomy
• The Right to Oversight of Associations and Directors
• The Right to Vote and Run for Office
• The Right to Reasonable Associations and Directors
• The Right to an Ombudsperson for Homeowners

I don’t think so, but obviously some specialized attorneys, managers and a few board members think so! Maybe they would be better off living in Cuba – or some other dictatorship?

In the article “Will AARP Bill of Rights Help FL Condo & HOAs?” it was predicted that “our Florida legislators will congratulate themselves with having the forsight to adopt these laws - and take no further action”.

Well, Condo lawyer Gary Poliakoff did it for them! In his letter to the Sun-Sentinal of Sep 2, 2006, Poliakoff says “Floridians may be pleased to learn that eight provisions… are already incorporated into the Condominium Act”.

Incorporated, yes. Enforced, NO! And Ambiguous to boot!

But Poliakoff’s law firm specializes in representing one side, the Board’s not the members, in disputes arising of this ambiguous and unenforced legislation. So they have a clear financial interest in maintaining the status quo. If the laws were enforced or unambiguous, then homeowners and associations would spend less money with law firms like Poliakoff’s.

In his letter to the Sun-Sentinel, Poliakoff is really congratulating himself on maintaining such a lucrative money machine. 

And the Florida HOA or Condo owners are screwed again!

Mr. Poliakoff and his colleagues have a duty to protect their client’s interests but there are or should be limits on how they go about doing so.  They certainly should not make or repeat deceptive statements. 

Experience shows that running a deed restricted community raises many important and increasingly widespread problems.  Denying this is deceptive

Experience shows that the guidance given to board running deed restricted communities is inconsistent and often contrary to the rights of the majority of the members.  Denying this is deceptive.

Experience shows that it is possible and practical to limit the powers of governing boards to what’s needed to operate a deed restricted community.  Denying this is deceptive.

Experience shows that attorneys for the boards of deed restricted communities and  management firms servicing such communities have a duty to protect the interests of their client boards of directors.  Unfortunately, that often puts those attorneys and/or service organizations into conflict with the best long-term interests of the members.  Denying this is deceptive.

Mr. Poliakoff certainly is entitled to speak and he has much wisdom to share.  But he should be careful to make it clear that his view is neither the only view nor an entirely unbiased one and so should be taken with a grain of salt.

Mr. Poliakoff and his colleagues have had years to improve the lot of homeowners in deed restricted communities in Florida.  Why haven’t they done so?  Despite claims to the contrary, the task is not impossible.  AARP developed a sound “Bill of Rights” for all homeowners in deed restricted communities in just a few years.  Why couldn’t Mr. Poliakoff and his colleagues have done so from the outset?  Despite claims to the contrary, Mr. Poliakoff and his colleagues had decades which certainly should have been more enough time.  Despite some protesters’ assertions, they are not incompetent and, if they were, then who is competent?