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Subject: OMG You aren't going to believe this!!
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Author Messages
KL1
(Florida)

Posts:4


09/01/2011 6:33 AM  
First off, I am not at all cheering the court ruling. I am just reporting it.

A Florida court with judge Linda Babb presiding has ruled that HOA’s do NOT have a fiduciary duty to their association members and that any and all HOA meetings do NOT have to be held at a location that is handicap accessible. In fact the judge specifically stated that wheelchair access to meetings is not required.

Have a problem with a neighbor that can not climb stairs? No problem, just hold the meeting on the second floor of a private residence, or for that matter out on a boat to exclude those that can not swim. Want to spend community funds on a new mailbox for the HOA president? No problem because in Florida the board can now do it as they no longer have a fiduciary duty to their members.

The case is whitt vs. bayhead landings located in Pasco county Florida. The Whitt’s own property and are members of the association. The final order from the judge can be found at the Pasco county clerk of court website. http://www.pascoclerk.com/

This ruling seems to go directly against the Florida statues which state...
720.303(1) “The officers and directors of an association have a fiduciary relationship to the members who are served by the association.”
720.303 (2)(a) “All meetings of the board must be open to all members...”
720.303 (2)(b) ”Members have the right to attend all meetings of the board...”
BruceF1
(Connecticut)

Posts:2480


09/01/2011 7:16 AM  
As I've said many, many times, you can never predict how a hudge will rule.
BruceF1
(Connecticut)

Posts:2480


09/01/2011 7:18 AM  
Posted By BruceF1 on 09/01/2011 7:16 AM
As I've said many, many times, you can never predict how a hudge will rule.

Excuse the typo. It wasn't intentional, but kind of funny.
MelissaP1
(Alabama)

Posts:4844


09/01/2011 9:45 AM  
The reality is that this isn't unusual. The law doesn't force individual homeowner's to make their homes "handicap accessible". I don't have to install a wheel chair ramp just in case someone in a wheelchair comes by my house. This is the same logic the judge ruled. The expense required to make some HOA's and Condo/townhomes handicap accessible can be too much of a burden and not considered "Public property". Usually areas that are for public use in a HOA/Condo have been brought up to code. We had 2 handicap spots in front of our clubhouse. I wouldn't have one in front my house.

The meeting notes should be available and documents open for reveiw any time upon request. If a person with a handicap needs to bring something to the board, they can always contact a board member to be included. They can send a letter just like every other attendee who thinks the HOA should listen to them without actually attending a meeting.

The judge ruled within the bounds of the law. If not, have fun paying for all the amenities you would have to put in.

Former HOA President
LawrenceC1
(Georgia)

Posts:480


09/01/2011 10:10 AM  
The case is whitt vs. bayhead landings located in Pasco county Florida. The Whitt’s own property and are members of the association. The final order from the judge can be found at the Pasco county clerk of court website. http://www.pascoclerk.com/




KL,

I looked on the http://www.pascoclerk.com/ web site and found Suntrust vs. Bayhead Landings but not the case that you refer to. Can you post a case number or some other way to find the case online?

BradP
(Kansas)

Posts:2640


09/01/2011 2:57 PM  
Posted By MelissaP1 on 09/01/2011 9:45 AM
The reality is that this isn't unusual. The law doesn't force individual homeowner's to make their homes "handicap accessible". I don't have to install a wheel chair ramp just in case someone in a wheelchair comes by my house. This is the same logic the judge ruled. The expense required to make some HOA's and Condo/townhomes handicap accessible can be too much of a burden and not considered "Public property". Usually areas that are for public use in a HOA/Condo have been brought up to code. We had 2 handicap spots in front of our clubhouse. I wouldn't have one in front my house.

The meeting notes should be available and documents open for reveiw any time upon request. If a person with a handicap needs to bring something to the board, they can always contact a board member to be included. They can send a letter just like every other attendee who thinks the HOA should listen to them without actually attending a meeting.

The judge ruled within the bounds of the law. If not, have fun paying for all the amenities you would have to put in.




I would disagree with HOA's not being "public" entities. Your personal home is your business and not subject to ADA laws, but having dealt with ADA laws and so call facilities that are not for "public" use this ruling strikes me as interesting. If the HOA meetings are open to the public then the facility choosen should be handicap accessible. If I am required by law to put an ADA bathroom stall in a Football only lockerroom then I would disagree with this judge.

But to go a step further, if you do have handicapped residents and you choose not to have a forum for meetings that is accessible I think that is wrong, even if this judge doesn't agree.
FredS7
(Arizona)

Posts:573


09/01/2011 3:14 PM  
Can anyone provide a link to the actual decision, or a more complete discussion?

The original posting is incomplete and inflammatory.
RichardP13
(California)

Posts:1661


09/01/2011 3:17 PM  
http://www.pascoclerk.com/public-courts-results-nc-case-info.asp?mdqs=c&tbqs=498703

This is the information I found. It appears the case was reopened and has a mediation date of 10/3/2011.
FredS7
(Arizona)

Posts:573


09/01/2011 3:49 PM  
Thanks but that's not the final order (or if it's there I can't find it). I see just a list of events.

I did a search and turned up the Associations summary:



"2) A lawsuit was filed against Bayhead Landings Property Owners Association July 22, 2010. The three count complaint was filed by a member of the Association seeking declarative and injunctive relief. Two counts of the lawsuit involved the BLPOA Board of Directors utilizing Florida Statute 712.05 and 712.06 to preserve the soon to expire Covenants, Conditions, Restrictions, Bayhead Landings Subdivision. The third count related to the Americans with Disabilities Act (ADA) and access to BLPOA amenities, BLPOA Board of Director meetings, and Association meetings.
i. A hearing to grant emergency relief on this the lawsuit was held October 6, 2010 in the Pasco County Judicial Court, Judge Susan Gardner presiding. On the two counts relating to utilization of Florida Statutes 712.05 and 712.06 there was no discussion. On the third count regarding ADA access, temporary relief was granted and the court instructed BLPOA to hold future meetings and Association functions at ADA compliant facilities. This ruling eliminated the BLPOA commons area as a venue for such meetings and functions.
ii. BLPOA filed a motion to dismiss the lawsuit and for reimbursement of attorney’s fees. A hearing on this motion was held January 20, 2011 in the Pasco County Judicial Court, Judge Linda Babb presiding. On the 2 counts regarding the Association’s utilization of Florida Statutes 712.05 and 712.06, since BLPOA Board of Directors corrected the misapplication of the Statutes in June, 2010, the court granted the defendants motion for dismissal, with prejudice. On the count against the Association for violation of ADA, the court granted the defendants motion for dismissal without prejudice, allowing the plaintiff 20 days to file an amended complaint with the court.
iii. The plaintiff filed an amended complaint. This amended complaint included a request for unspecified financial damages and inserted five additional counts not part of the original lawsuit.
iv. BLPOA filed a motion to dismiss the lawsuit and for reimbursement of attorney’s fees. Prior to the hearing, the Association extended an offer of settlement to the plaintiff that that was declined. The plaintiff extended a counter offer that the Association declined. The hearing on this motion was held April 26, 2011, in the Pasco County Judicial Court, Judge Linda Babb presiding. The court granted the defendants motion in its entirety, dismissing all 6 counts of the amended complaint.
v. On May 9, 2011, the plaintiff filed a motion for a rehearing of the amended complaint and the court denied the motion.
vi. We are waiting for the court to post the final judgment. Once this is done, the second part of the Associations motion (reimbursement of attorney’s fees) will be addressed by the court.
vii. Legal Fees. Please note the following:

Total attorney expenses 01/01/10 – 03/30/11 $19,887.79 –*4,000.00(+-) = 15,887.79"
KL1
(Florida)

Posts:4


09/02/2011 10:00 AM  


The case number is 51-2010-CA-5795-ES/Y.


FredS7
(Arizona)

Posts:573


09/02/2011 2:17 PM  
This all started with a post intimating that some terrible injustice had been done.

I asked for more information- ideally more objective. With the information given I can see that there IS or WAS a court case and I can see when actions were taken. However (and this may be because I don't know how to find it) I can't see anything like a written opinion that would help me understand what the court decided and why.

The original poster has given us one side. Actually not EVEN one side- a sort of allusion to a feeling about one side. So I rather suspect that there is much less here than suggested in the original posting.

If you want to communicate- give information, not dark hints.
PetunkaM
(Florida)

Posts:958


09/02/2011 5:07 PM  
Fred,

All I can say is that you are a peach and do thank you for your effort to search the case. I would not because I knew Kl1 is.. never mind.

LarryB13
(Arizona)

Posts:2443


09/03/2011 11:36 AM  
Posted By FredS7 on 09/02/2011 2:17 PM
This all started with a post intimating that some terrible injustice had been done.

I asked for more information- ideally more objective. With the information given I can see that there IS or WAS a court case and I can see when actions were taken. However (and this may be because I don't know how to find it) I can't see anything like a written opinion that would help me understand what the court decided and why.

The original poster has given us one side. Actually not EVEN one side- a sort of allusion to a feeling about one side. So I rather suspect that there is much less here than suggested in the original posting.

If you want to communicate- give information, not dark hints.



Amen.

BTW, there is a published opinion from the Arizona Court of Appeals Division One that holds HOA's are not places of public accommodation and are not therefore required to abide by the ADA. The case is Noln v. Starlight Pines Homeowners Association, ____ P3d ___, ____ Ariz. ____ (App.1997).

The case usually can be found online at http://www.cofad1.state.az.us/opinionfiles/opidx.htm, however since it is a holiday weekend their server seems to be down.
LarryB13
(Arizona)

Posts:2443


09/04/2011 11:48 AM  
Nolan v. Starlight Pines Homeowners Association can also be found at http://caselaw.findlaw.com/az-court-of-appeals/1443444.html
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