By Deborah Goonan, Independent American Communities
After nearly 2 years and three previous attempts to file a lawsuit against their HOA, one that Polk County Court will accept, 3 Poinciana homeowners can finally begin to prepare their case.
Their goal is to remove Poinciana’s developer from control of the Association of Poinciana Villages (APV). APV is the master association of one of the largest HOAs in the U.S., consisting of 9 separate Village HOAs with 27,000 homes.
Homeowners have been fighting to control their HOA for several years, but APV continues to allow AV Homes (Avatar) to cast thousands of votes for unplatted vacant lots that might hypothetically contain homes or condos someday.
A Polk Circuit Court judge ruled that Counts 3 and 5, alleging breach of contract on a 1985 agreement with AV Homes (Avatar) can move forward. The 1985 agreement sets forth limited rights of the developer to vote in Association elections. Homeowners argue that APV and AV Homes have failed to follow the terms of that agreement, making it nearly impossible for owners to gain control of their own Association.
Other counts in the most recently filed lawsuit, including allegations of breach of fiduciary duties, have been dismissed.
The fact that 3 homeowners have persisted this long is remarkable. According to one report, legal costs have exceeded $80,000 so far.
Why must it be so difficult for homeowners to enforce their rights?
How many homeowners have tens or even hundreds of thousands of dollars to spend on legal fees to fight for their rights? How many are able and willing to commit to several years in a protracted legal battle, just to gain access to association records, and to have equitable voting power in their association?
Not many, of course.
Many households struggle to keep up with their financial obligations. They have jobs to do, families to take care of, or they are living on a fixed income in their retirement.
Whether or not Poinciana homeowners prevail in their lawsuit, it is clear that homeowners need less contentious, more practical ways to settle disagreements with their Associations.
Many disputes could be avoided if only owners and residents were required to operate within Constitutionally-based governance standards that would prevent their Association Boards from neglecting their duties and abusing their powers.
Likewise, if Poinciana were a city instead of a homeowners’ association (corporation), there would be great public outcry if the Mayor and City Council usurped the rights of all its residents, and controlled all decisions, without any accountability to constituents.
Oligarchy or democracy?
Poinciana is just one example of an HOA that seems to operate more like an oligarchy than a democracy. For more than 30 years, the developer and a few affiliates have controlled most of the Village associations as well as APV.
Poinciana homeowners do not have a voice, because their voting power is severely diluted by AV Homes’ corporate clout – special Declarant Rights deliberately written into APV’s governing documents by attorneys working for the developer.
And yet, industry trade group Community Associations Institute (CAI) continues to proclaim that HOAs are democratic institutions. Apparently, CAI has engaged in a common political strategy – repeat false rhetoric often enough, and it will be accepted as the truth.
But housing consumers and a growing number of policy makers across the U.S. have come to recognize the spin. They know that association-governed communities very seldom operate in a democratic, transparent manner.
That’s why many are watching closely the lawsuits filed against APV.
UPDATE: Some policymakers support Poinciana homeowners:
Polk circuit judge OKs portion of Poinciana homeowners’ lawsuit against HOA
By Ryan Gillespie, Orlando Sentinel
October 17, 2017 2:35 PM
After nearly two years of effort, a lawsuit filed by three homeowners against one of the state’s largest homeowners associations is finally moving forward.
Polk County Circuit Judge Larry Helms ruled two counts alleging breach of contract can proceed to the discovery stage, though several other allegations were dismissed from the latest version of the homeowners’ lawsuit.
In the remaining counts, homeowners Peter Jolly, Victor Destremps and Annette Brown say Avatar, which is the developer of the Association of Poinciana Villages neighborhood, should have turned over control of its elected board to homeowners.
Attorney Jennifer Englert, who is representing Jolly, Destremps and Brown, said they can now pursue documents they previously haven’t been able to obtain.
4th time the charm? Poinciana homeowners say case vs. APV, Avatar moving forward
By Mark Ferguson, News Chief
October 17, 2017 8:48 PM
Updated October 18, 2017 7:21 AM
POINCIANA — Certain complaints filed by three Poinciana homeowners against the Association of Poinciana Villages were thrown out, but homeowners think they’re finally going to get their day in court.
“We are where we need to be,” said Jennifer Englert, the Orlando-based lawyer representing homeowners Peter Jolly, Victor Destremps and Annette Brown-Best. “We can finally move forward and get all the documents we need.”
The three homeowners allege that Association of Poinciana Villages, a community of nearly 27,000 homes that spans parts of Polk and Osceola counties, has violated the 1985 agreement by allowing developer AV Homes to maintain control of the community, among other things.
The developer, more commonly referred to as Avatar, uses unplatted lots to cast votes in the homeowners association elections, and homeowners say it uses those votes to keep AV Homes employees and people favorable to the developer on the board.
The homeowners and APV met in court for a fourth time Sept. 7 after three other cases were dismissed without prejudice. The latest parts of the dismissal are related to fiduciary responsibilities, Englert said, but the portions about the 1985 agreement have been allowed. Judge Larry Helms, with the 10th Judicial Circuit, gave his ruling Oct. 9.