DRACONIAN AMENDMENT IGNORING FLORIDA STATUTES?

An Opinion By Jan Bergemann
President, Cyber Citizens For Justice, Inc.

Published August 13, 2016

Over the years I have seen many attempts of board members trying to pass amendments that would ignore the provisions of the Florida statutes. But one of the most blatant attempts is unfolding in the MONTERRA COMMUNITY ASSOCIATION, INC. in Cooper City.

With a simple board vote – the board consists of so-called voting representatives – the board members are planning on amending the community’s CC&Rs by adding this paragraph:

7. Proposed Amend Article XIV, to ADD Section 15 to the Declaration as follows:

14.15 The cost and attorneys' fees, including those resulting from any appellate proceedings, incurred by the declarant or its designees, the Community Association, or a party having a right to enforce this Declaration, if any, pursuant to Article X, who prevails in any such enforcement action, in any action against a person to enforce any provision of this Declaration shall be a personal obligation of such Person which shall be paid by such Person. In the event that the Association is required to engage the services of an attorney to seek enforcement of the provisions of this Declaration, the Articles of Incorporation, the By-Laws and the Rules of the Association, and the Owner of the Unit complies with the requirements subsequent to attorney involvement, the association shall be entitled to reimbursement of its costs and attorneys fees so incurred from the Owner of the Unit, regardless of whether litigation is necessary for the enforcement. In the event that the Community Association in its sole discretion retains an attorney to prepare and/or respond to any letter, pleading, correspondence, contact, and/or issue raised by, about or between Members directed to the Community Association, its Board of Directors, or related to the Community Association and the common area, any reasonable costs and attorneys fees associated therewith including any pre-suit costs and fees through and including all trial and appellate levels and postjudgment proceedings shall be the responsibility of the individual Member. The costs and attorneys fees so incurred shall be deemed to be a Special Assessment against the Residential Unit, and shall be collectible in the same fashion as any other assessment as provided in Article 7.

I think it’s absolutely ridiculous to even attempt adding such an amendment, considering that the language in the Florida statutes regarding payment of legal fees is very clear – and even contains the magic words: “PREVAILING PARTY!”

But what I find most disturbing is the fact that the language used in this proposed amendment is clearly the work of an attorney – an attorney who should know much better than writing such nonsense that will be unenforceable from starters. If the board ever votes on this amendment and then even tries to enforce it, they will suffer a total financial disaster in any court of law – a disaster a lot more expensive for them than what they are trying to gain: A dictatorial measure trying to scare any owner in the community from speaking out against their will.

I always wonder why certain board members strive to be Adolf, Joseph and Fidel in one person.