MEETING
September 24, 2003
More
an Opinion than the Actual Minutes |
Published 10 - 01 - 2003
By Jan Bergemann
First of all: The Thank-You Notes!
Thanks to Governor Jeb Bush, who
asked for this Task Force to be created.
Thanks to DBPR Secretary Diane Carr,
who created the Task force with the help of her very efficient staff and
gave us consumer advocates a very warm welcome.
Thanks to Co-Chairs Julie Baker and
William Sklar for navigating us through the first meeting
without serious problems. Not an easy
task, considering the variety of different opinions.
It sure was very educational to participate
in this first meeting. It remains to be seen if this Task Force can
create some reasonable proposals. The members have been selected from all
kinds of interests, including many so-called “service providers.”
In my opinion, a member of the Community Association Institute, a trade organization mostly representing
the interests of HOA attorneys, has no business being on a Task Force.
In a conversation with Secretary Carr, I voiced my concerns and asked if
she invites her maid to participate in her household budget talks?
Most of the ineffective association laws
we find in the Florida Statutes today are influenced and written with the
help of CAI. Everybody has seen many problems in these associations.
This was shown at the HOA/Condo hearings on September 23-24, 2003 in Miami.
Times for
excuses are over. It is false that “just a few
‘disgruntled’ persons are complaining.” (“Disgruntled”
is the favorite word of the industry.)
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The Task Force Co-Chairs: Julie
Baker, DBPR, and William Sklar,
University of Miami School of Law |
Every responsible person
in the State of Florida has to realize that the time to play ostrich is
over. Now our legislators are asked to fulfill their fiduciary duties
to protect the consumers against these abuses. Our Home Is Our
Castle! Don't let it be destroyed by greedy industry partisans!
As you all remember, it was our vision
that only parties with a vested interest should be members of a
Task Force and make proposals regarding future legislation. Homebuilders,
developers and consumers have a vested interest. Community developers are
in the business of selling the homes and horror headlines in the media
about abuses and foreclosures sure don't help their sales. Consumers, meaning
homebuyers, want a nice, peaceful home -- not a share in association
politics. These shared interests can be coordinated, but for example
the money-making interests of HOA attorneys don't fit in this picture.
Nor realtors? Helpful profession
for builders and consumers, but the only thing realtors should be concerned
about is the correct disclosure of all pertinent facts during the sales
of the homes. Many of the court battles wouldn't occur, if all the
little details would be honestly disclosed prior to sale.
Consider this fact: About 50% of
the members of this Task Force are attorneys! "Maybe we should
consider renaming these associations from homeowners' associations to attorneys'
associations, because they often run the show anyway!” was a comment we
heard.
And the "Homeowners' Bill of Rights" the
CAI eagerly tries to promote? Many feel that is just some more lip-service,
which will most likely be violated by the same people promoting it!
Just some more window washing?
Homeowner activists listen carefully to the issues discussed
by Task Force members as Bob Janauskas seeks the floor from chairman William
Sklar. |
First issue for the day was FLAGS
and whether homeowners’ should be granted the same rights as condominium-unit
owners to fly the United States flag and military service flags.
Actually, the Task Force members voted in favor, despite the fact there
were many unanswered questions as to how many can be flown at the same
time? Up to SIX? A motion to finally include the words “flagpole”
and/or “bracket” into FS 720.304(2) was defeated -- as expected.
Reason given: More research necessary! My opinion: It
would give boards less power to prosecute homeowners. But this will
not be the last time this will be brought up!
During the presentations by members of
the audience, it was clearly noted that the actual part of organizing the
Task Force is still missing. Bob Janauskas and Chan Gerber both were
surprised that something like the flag issue was No. 1 on the agenda.
Shouldn't the main issues be discussed first? Isn't it like trying
to hang blinds in a house that isn't even framed yet?
But only after Task Force member Rafael
Penalver, a Miami attorney, voiced similar complaints did the co-chairs
agree to let every person present his ideas. As expected, the ideas
vary totally. Since the agendas for all the meetings (except the
final two) are already preset, we can only hope that the people in charge
will reconsider. So far, no concessions were made. I think
the meeting next month in Coral Gables will have great influence on the
final success of this Task Force.
Consumer activist Karen Gottlieb from Ft.
Lauderdale emphasized that consumer protection should be Number One
on the list. Vested interests must be protected without homeowners
having to spend a fortune in legal fees. This goes hand-in-hand with Anti-SLAPP-Suit
laws, used by deep-pocket developers to subdue financially weak owners.
Second issue on the agenda: Association
-- Whether the definition of “homeowners’ associations” should be
amended to include organizations and entities presently operating homeowners’
associations, but not clearly within the scope of the definition.
Should different kinds of communities by
included? After discussion, for very different reasons, the panel
voted: NO! While consumers argued that nobody else should suffer
from the bad regulations of FS 720, industry representatives considered
the fact that these other communities should not be involved in the existing
problems. |
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CHIP Vice President Chan Gerber
during his presentation |
Joe Gorman, President of the POA of The
Villages, feels that owners always seem to be the losers in the debate
about HOAs. Homeowners need to be the winners in this debate.
The task force needs to focus on the important
issues. The flag issue is important, but I am not sure that it would
rank with the half-dozen or so most important issues. Homeowners need better
control of their communities and boards that are more responsive to the
needs and interests of residents. Only with true reform of HOA laws
will residents be the winners here.
One of the main issues discussed was "mandatory"
versus "voluntary" associations. It was clearly noted by all parties
that voluntary associations could only be changed to mandatory associations
by 100% consent of all homeowners. Case law is easily available and
attempts by certain groups to force their neighbors into a lifestyle they
don't want should cease. There has been a trend in recent years, where
neighbors try to bully neighbors into joining mandatory associations.
So far, all legal attempts to do so have been utterly defeated at very
high expense to the defeated parties. Again, this goes back
to vested interests, as described in the Florida Statutes.
The members of the Task Force decided to
leave the definition “as is” in the moment until further discussion.
More detailed information is needed in order to make informed decisions.
Despite the fact that the members of the
Task Force are mostly not very consumer oriented, consumer activists still
hope that common sense will prevail. Many of the members are attorneys
and should know that settlements are better than all-out wars. Many
of the industries represented on the Task Force are aware that a product
sells better if nasty headlines don't greet consumers at the breakfast
table. Florida is heavily recruiting retirees
from Northern States. Outcome of these
discussions will be significant in attracting future residents. The
media is reporting about these meetings and Florida's reputation has
already suffered severely. Florida's economy depends heavily on these
retirees. So it actually should be in the interest of the industry
to have peace in the communities and to discard the ugly headlines and
horror stories.
Before the first meeting of the Task Force
adjourned, CCFJ President Jan Bergemann handed out copies of the CCFJ Bullet
Sheet to all members of the Task Force. (This is actually a
summary of problems and a consumers' wish list, titled: Most
Important Criteria For Legislative Changes.) We hope that the members
of the Task Force will read this document and will be willing to have an
open discussion about it. It is obvious that without enforcement
by a government agency all best intentions will go nowhere.
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Bob Janauskas, Ocala, representing CAN + CCFJ, told
the panel that homeowner activists are here to stay and
will this time not go away until their goals are achieved!
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Homeowners
just don't have the finances to fight for their rights, even the obvious
ones, especially since they are fighting their own money. We make
reasonable suggestions how to finance this agency, using funds collected
by the owners. This way could even save regular tax dollars, nowadays
used for the many lawsuits pending in Florida courts. Yet there are
no local remedies, as a Task Force member suggests. The lawsuits are ongoing
all over the state and the number is growing!
At the end of the meeting Chan Gerber,
Vice President of CHIP, distributed the CHIP
Position Paper created by members of his organization. The meeting
was adjourned and consumers are looking forward to the meeting in Coral
Gables on October 17, 2003, hopefully with more positive results. On the
agenda: Removal of Directors and Alternative Dispute Resolution.
I took the opportunity to speak to Secretary
Diane Carr after the meeting to thank her personally for the warm welcome
she gave consumer representatives. I explained that the many complaints
against actions or non-actions of the DBPR are not directed against her
person. It's becoming a habit to exchange the DBPR secretary once
a year. In my opinion, the many faults are not created by the secretary,
but by certain entrenched department heads and employees.
Many decisions by the DBPR definitely didn't
meet the consensus of the consumers. One example is the contract
with the CAI to provide education to boards and homeowners. We think
that part of this money (a total of $500,000), paid by condo-owners, is
being used by this trade organization to lobby against any homeowner-friendly
bills.
Another example is the attempt
to deregulate Community Association Managers in the last legislative session.
Even when regulated, there are enough problems with dishonest managers, who
should be punished and their licenses removed. Slapping wrists doesn't help the
cause. |
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DBPR Secretary Diane Carr in conversation with
CCFJ President Jan Bergemann |
With regulations in place, the many honest managers
willing to obey the rules would automatically gain a much better reputation.
Weeding out the bad guys helps the whole honest membership --
as in many other professions whose reputations are being destroyed by dishonest
members.
We are looking forward to the next meeting
of the Task Force and will continue to propose improvements to the status
quo. We just hope that many more Task Force members will be willing
to listen to these proposals with an open mind. Changes are necessary for
the sake of all parties with a vested interest! |