By Deborah Goonan, Independent American Communities
Florida has more Association Governed Residential Communities than any other state in the U.S. (California is a close second). But it also has a corresponding frequency of HOA disputes and Condo chaos.
For some odd reason, Florida’s Division of Professional and Business Regulations (DBPR) has limited regulatory jurisdiction for condominiums, cooperatives, and mobile home parks, but no regulation of homeowners’ associations (single family homes with privately deeded lots).
For the last four years, state advocates have tried to add DBPR jurisdiction over HOAs, similar to what is currently in place for Condo and Cooperative Associations. The bill has failed to gain any traction in the Florida Legislature.
DBPR’s limited authority in Florida
But, when you look at the limited scope of what DBPR has to offer condo and co-op owners, it explains why there’s not much excitement or clamoring in support of increasing DBPR’s scope of authority.
According to DBPR’s web site, they can answer questions and provide training and education, but jurisdiction for enforcement of Statutes is limited. Here’s a summary of how DBPR handles complaints.
Within 30 days after receipt of the complaint, the Division will notify you whether the complaint is within the jurisdiction of the Division and whether additional information is needed. If appropriate, the Division will then conduct an investigation.
In condominium associations where developer turnover has occurred, our division’s jurisdiction is limited to the investigation of complaints related to financial issues, elections, and unit owner access to association records. All other complaints against a condominium association may be addressed by the arbitration or mediation process, or the courts. You may access our Arbitration web page at http://www.bpr.state.fl.us/lsc/arbitration/default.asp.
In other words, if you have a dispute with your Association over a rule violation notice, selective rule enforcement, amendments to your governing documents, or failure to maintain the common areas, your only recourse is mediation or arbitration, and when that proves fruitless (as it often does), your only other option is to file a civil suit.
Please note that owners of property subject to HOAs don’t even get this minimal level of regulatory support from the state of Florida. For HOAs, DBPR’s sole jurisdiction is to settle election and recall disputes by arbitration.
How DBPR handles condo, co-op owner complaints over access to records
Nevertheless, for condos and cooperatives DBPR is tasked with enforcing FL Statutes governing member access to association records. According to the statutes 718 and 719
(c) The official records of the association are open to inspection by any association member or the authorized representative of such member at all reasonable times. The right to inspect the records includes the right to make or obtain copies, at the reasonable expense, if any, of the member. The association may adopt reasonable rules regarding the frequency, time, location, notice, and manner of record inspections and copying. The failure of an association to provide the records within 10 working days after receipt of a written request creates a rebuttable presumption that the association willfully failed to comply with this paragraph. A unit owner who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply. Minimum damages are $50 per calendar day for up to 10 days, beginning on the 11th working day after receipt of the written request. The failure to permit inspection entitles any person prevailing in an enforcement action to recover reasonable attorney’s fees from the person in control of the records who, directly or indirectly, knowingly denied access to the records.
That should be fairly simple and straightforward, right?
If you request records, and your association fails to provide access, you file a complaint, and then DBPR intervenes on your behalf. They order your association to provide required records, and you get up to $500 as a penalty, plus reasonable attorney fees.
Well, apparently not. According to a recent DBPR arbitrator decision, your association can choose to ignore your request altogehter, and get away with it. The arbitrator ruled that, unless the owner makes an attempt to schedule a specific time to review the records, DBPR will not pursue the matter further.
Unbelievable but true. Read this article, written by an HOA attorney:
…according to this Division investigator, not only does a unit owner need to send a written request to inspect records, but that owner also needs to follow up with the association, and attempt to schedule an inspection within the five-working-day period. If he or she does not actively follow up, the association’s failure to respond doesn’t constitute a violation (or at least, it’s not a violation that the Division is willing to pursue).
This is on the heels of a Miami Herald report of widespread investigation of south Florida condo associations, over allegations of election fraud, and during a time when the FBI has increased scrutiny over potentially shady sales of luxury condominiums in Miami.
You would think that, if there was ever a time that owners should request access to association records, this would be the time. But DBPR has just put up another roadblock, and proved its level of uselessness in terms of putting teeth into Florida statutes.
Condo owners protest abuse and fraud in their associations, demand action
So, not coincidentally, condo owners in South Florida are mad as hell. And they are marching in protest – at least 5 times in the past few weeks.
From the Miami Herald article, one 74-year old condo owner at a protest march says:
“Because I asked for information, they threatened me, they even vandalized my car and my house,” said Gutierrez. “I pay the maintenance and everything is dirty. It’s a disaster. I don’t know where the money goes. I have a right to know.”
The article also reports that State Rep. Jose Felix Diaz, head of the Miami-Dade delegation in Tallahassee, is working on reform efforts, with support from County Mayor Carlos Gimenez.
But will the Florida Legislature finally enact new legislation with meaningful consmer protection for condo owners? Perhaps, but only if enough people protest loudly, and with persistence.