Get 1 year of free community web site hosting from Community123.com!
Monday, April 06, 2020











HOATalk is a free service of Community123.com:

Get 1 free year community website and email newsletter hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: HELP!
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
ToddR4
(Florida)

Posts:23


10/03/2017 7:28 AM  
Can anyone recommend a process to fight a HOA board in the State of Florida?

Typical issue - everyone wants to fight, but does not want to contribute to the legal fund.

Looking for a suggestion, any suggestion.

Thank you.
JohnB83


Posts:0


10/03/2017 8:01 AM  
NO
SheliaH
(Indiana)

Posts:3061


10/03/2017 8:03 AM  
It's always amazing to me that people want change but when it comes to stepping up, they balk, especially when it comes to money. I suspect people are afraid of how much and how long legal action will cost and of course, there's no guarantee they'll win. Human nature also shows that too many people get fired up, but prefer someone else do the dirty work, not realizing they are also the HOA. Ultimately the homeowners decide what type of community they want to live in and have to put in the work to get there, starting with putting in people who will do the right thing and then monitor them to make sure they do.

You don't say what your issue or issues are that make legal action necessary, but it may be some people don't understand them and/or aren't convinced it affects them too. I don't know how much education you've done, but that's where you start -distribute flyers, go door to door, hold your own meetings to get the word out. Skip the name calling and be clear on what needs to be done and use facts and figures to support your position. One of the best ways to get people motivated is to talk about money - how do the board's actions or lack thereof put the entire community at risk, whether it's inconsistent rule enforcement, underfunding reserves, not implementing regular audits to make sure the money doesn't go funny, etc?

The board may respond with threats (if they haven't already), but that's when you have to put your head down and plow through - change is never easy and doesn't come without sacrifice - it's a matter of how far you're willing to go. That's also why you need the help of your neighbors because there's always strength in numbers.

None of this means there won't eventually be some sort of legal action against the board members, but the first step is to get them out. That's why it may be best to put the legal fund on hold, check your documents to see what's required to recall the board, rally together your neighbors and then do it. It IS time-consuming, but a lot cheaper and faster than filing a lawsuit.
KerryL1
(California)

Posts:7052


10/03/2017 8:59 AM  
Why do you need a legal fund, Todd. Isn't there enough support to vote out the current Board??? Or most of them?
ToddR4
(Florida)

Posts:23


10/03/2017 9:03 AM  
You are on point Shelia.

This has been my experience and position as well.

I wanted to make sure I wasn't missing anything.

It amazes me the amateurs who take over and run a HOA. They are experts in all aspects of everything.

Why do unethical individuals drool over running a HOA? There are no controls or consequences.

I will NEVER buy a house in a HOA again.
AugustinD


Posts:2946


10/03/2017 9:22 AM  
Posted By KerryL1 on 10/03/2017 8:59 AM
Why do you need a legal fund, Todd. Isn't there enough support to vote out the current Board??? Or most of them?




My feelings are similar to Shelia's and Kerry's. Else I propose to Todd that all those unhappy with things at his HOA start considering all the time and emotion a lawsuit takes compared to the time and emotion it takes to serve on the board or work to get better people on the board.
ToddR4
(Florida)

Posts:23


10/03/2017 9:33 AM  
I will try an explain without going into much detail.

Our community's census is 60% - retired and 40% - working families. The board consist of 100% retired individuals who refuse to allow property owner open discussion at meetings and hides financial details. They hand pick committee members as well. It is complete discrimination and suppression of property owners rights.

Until the decisions of this board hit people in the "pocketbook" nothing will happen. Sad, but true.

Many of us have been fighting this cause for over a year exposing the financial indiscretions that continue within our community.

For example....

A 10,000 proposed clubhouse expansion project. Concept plans drawn, no cost disclosed, no funding source identified.

Without a grass roots ground campaign knocking on doors, the only way to get the attention of these folks is a law suit.

Then the problem becomes, I am paying the HOA to defend my opposition.
SueW6
(Michigan)

Posts:655


10/03/2017 10:03 AM  
What is going to be your "case" in front of the court?

" . . . who refuse to allow property owner open discussion at meetings"
Board meetings usually allow for an "open forum" at the beginning of the meeting. This time is limited for residents to bring issues up. Best thing is to write a letter and ask that it be read at the meeting. Remember: Board meetings are not member's meetings; it's a place where business of the corporation takes place.

" . . and hides financial details."
You have every right to see financial reports. Talk to the manager. Are you looking for anything in particular? Ask to see the approved minutes. The treasurer's report is attached. At the Annual Meeting of the Members, a full report is given. Did you get your questions answered then?

"They hand pick committee members as well."
Boards appoint committee members. Not unusual.

"It is complete discrimination and suppression of property owners rights."
How?


"$100,000 proposed clubhouse expansion project. Concept plans drawn, no cost disclosed, no funding source identified.
Sounds like they are just gathering ideas/proposals. What do your bylaws say about approval from the Members about expenditures over a certain amount.

Unless I missed something I don't see your "case" for a lawyer.

FredS7
(Arizona)

Posts:919


10/03/2017 10:37 AM  
Since voting is free, if you can't even get people to vote then...it looks like the majority doesn't think there's a problem.
DouglasM6
(Arizona)

Posts:724


10/03/2017 10:58 AM  
There is something else going on here.

What citation(s) did you receive from the HOA, Todd?
ToddR4
(Florida)

Posts:23


10/03/2017 12:24 PM  
What is going to be your "case" in front of the court? Point well taken.....

" . . . who refuse to allow property owner open discussion at meetings"
Board meetings usually allow for an "open forum" at the beginning of the meeting. This time is limited for residents to bring issues up. Best thing is to write a letter and ask that it be read at the meeting. Remember: Board meetings are not member's meetings; it's a place where business of the corporation takes place.

Agree - however, there needs to be a forum in which property owners can express their concerns to the board. They refuse to listen. It is truly an autocratic management style. The philosophy expressed is "if you don't like it, sell and move". Sad, but true.


" . . and hides financial details."
You have every right to see financial reports. Talk to the manager. Are you looking for anything in particular? Ask to see the approved minutes. The treasurer's report is attached. At the Annual Meeting of the Members, a full report is given. Did you get your questions answered then?

It is a self managed residential community of approximately 1,700 units. Guess who self manages and appointed the general manager? The board.

"They hand pick committee members as well."
Boards appoint committee members. Not unusual.

True, but why wouldn't you encourage participation in committees, not discourage?

"It is complete discrimination and suppression of property owners rights."
How?

They have refused to allow events at the common area clubhouse to property owners who oppose their positions. Folks, I am not making this up.


"$100,000 proposed clubhouse expansion project. Concept plans drawn, no cost disclosed, no funding source identified.
Sounds like they are just gathering ideas/proposals. What do your bylaws say about approval from the Members about expenditures over a certain amount.

There must be a majority vote. They refuse to use electronic voting because the participation would increase from 50% to 70% - they are scared of the results.

Unless I missed something I don't see your "case" for a lawyer.

I understand. I am looking for suggestions other than a door to door campaign to expose issues.

Thank you.
ToddR4
(Florida)

Posts:23


10/03/2017 12:33 PM  
Yes, there truly is something else going on.

There is no communication from the HOA. There is a portal, but meetings are held outside Sunshine Laws (Florida state law) and decisions are made without property owner input.

We are self managed, so there is no buffer to eliminate politics.

It is simply amazing.....
CarolF
(Florida)

Posts:433


10/03/2017 1:07 PM  
Todd - There is Florida Statute 720 that applies to Home Owners Associations, and 718 that applies to Condominiums.
When you say "Sunshine Laws" for Florida that applies to public government.
ToddR4
(Florida)

Posts:23


10/03/2017 1:38 PM  
Carol,

Yes, I understand. Improper use of the Sunshine Law. However, Statue 720 does have language that prohibits HOA business to be stealth.

Please see contents of an article - Sarasota Herald Tribune.

If a quorum of the board is present together and discussing board business, that discussion constitutes a de facto board meeting, which must be properly noticed and open to the membership to attend, unless a narrow exclusion applies, such as a meeting with the association attorney regarding proposed or pending litigation. The key is defining what “present together” means.

A board meeting held by conference call where all parties can hear and be heard constitutes a meeting.


What about electronic communications?

What happens if, rather than holding an official board meeting, the individual directors instead email or text one another, copying all directors and the manager, clearly establishing an online dialogue?

As a director, what if you receive one of these exchanges and reply, “I concur.” Did you just vote illegally?

Do email exchanges among directors in advance of an official meeting make a vote on that subject at the meeting just a rubber stamp for decisions privately decided?

In other words, can a board do indirectly what the statutes say can only be done directly?

Here are just a few guidelines for use by directors of email communications:

Do not “poll” fellow board members. Less than a quorum of the board can meet, talk on the telephone or otherwise communicate with one another about association business without violating the law. Copying all directors regarding a pending matter may be fine, but even asking, “So what do you think?” can create a de facto board meeting if the question elicits responses.

Credit for this article - Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years’ experience. She is an attorney with the the Law Offices of Kevin T. Wells PA in Sarasota, concentrating her practice on community association and real estate. Date - October 6, 2013.
CarolF
(Florida)

Posts:433


10/03/2017 2:03 PM  
Todd - your statement -
It is a self managed residential community of approximately 1,700 units. Guess who self manages and appointed the general manager? The board.
So, is the general manager a licensed CAM(Community Association Manager)? Is this manager paid? If so, he/she must be a licensed CAM.
I take it that the "units" are individual homes, not condos.
DouglasK1
(Florida)

Posts:1489


10/03/2017 2:23 PM  
Posted By ToddR4 on 10/03/2017 12:24 PM


" . . and hides financial details."
You have every right to see financial reports. Talk to the manager. Are you looking for anything in particular? Ask to see the approved minutes. The treasurer's report is attached. At the Annual Meeting of the Members, a full report is given. Did you get your questions answered then?

It is a self managed residential community of approximately 1,700 units. Guess who self manages and appointed the general manager? The board.



If you are not already, you should become familiar with the laws governing Florida associations. For condos, this is Florida Statue 718, which also gives some enforcement powers to the state DBPR. For HOAs, it's FS 720. Those don't have an enforcement mechanism other than the courts for the most part, but still not a bad idea to be familiar. 720 states that upon request, the association has to make the records available for inspection within 10 days, or face a $50 a day penalty. Not that you'd collect easily, you'd need to sue for that too. I would reference the statue in the request, something like:
"Pursuant to Florida Statute 720.303(5), I would like to inspect the association records within the next 10 days, please let me know the date, time, and location where this can be done."

Make sure to read that section to know what the limitations are. Some records can be withheld, and the don't need to let you use their copier for free. They have to allow you to make your own copies, such as taking pictures with your phone.
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720.html

Escaped former treasurer and director of a self managed association.
TimB4
(Virginia)

Posts:16706


10/03/2017 2:26 PM  
Todd,

The underlying problems you have shared seem to be with Board policies.

The fix isn't court action. Although the courts may help in obtaining financials, they aren't going to be able to really fix anything else.

The fix is gathering support from the members in electing those willing to serve that will change the policies the members are upset with. If the support isn't there, to be completely honest, change simply is unlikely to occur.

Change can happen but it won't happen overnight.

When I chose to gather support within my Association it took three years of educating the membership to what the governing documents were, what the applicable statutes were and how they were or were not being followed. Although I ran for the Board, I wasn't elected until four years later (and at that time, I was the only one). However, changes did occur in year three.

As Shelia and others pointed out, the approach used will be the key. It might be that someone else might be a better face and voice in gathering support. It might that you are the best one for this task.

People will shy away the minute they have to open their wallets. Hence, gathering support and voting the bums out may be an easier method.

Hope this helps,

Tim
ToddR4
(Florida)

Posts:23


10/03/2017 2:33 PM  
First, a community of 1,700 units should not be self managed. He is a puppet of the board, not a true manager of a residential community. Of course he is paid and licensed as a CAM too.

Yes, the majority are single family homes with a mix of multi family.

My point is a hired professional management company would eliminate internal politics as the board would set policy and procedure, then let the management company handle the day to day operations.

Guess who handles the day to day operations? A handful of board members.

Your insight is super. Thank you.
TimB4
(Virginia)

Posts:16706


10/03/2017 2:49 PM  
Posted By ToddR4 on 10/03/2017 2:33 PM

First, a community of 1,700 units should not be self managed.




I think that depends on the amenities that need to be done.

Hiring a bookkeeper or part time help when needed can still keep costs low.
However, I do agree that that is a large enough Association that a simple board of x will need help with the day to day tasks.


Posted By ToddR4 on 10/03/2017 2:33 PM

[the GM]He is a puppet of the board, not a true manager of a residential community.




Keep in mind that a Management Company (MC) will also appoint a property manager (PM) who works at the direction of the Board. (as the Board makes the decisions for the Association)



Posted By ToddR4 on 10/03/2017 2:33 PM

Of course he [GM] is paid and licensed as a CAM too.




Well, there is one avenue for you.
If you are properly requesting (written, certified mail) for access to governing documents, financials and reports and are being refused. Take that proof and make a complaint to the licensing board.



Posted By ToddR4 on 10/03/2017 2:33 PM

My point is a hired professional management company would eliminate internal politics as the board would set policy and procedure, then let the management company handle the day to day operations.

Guess who handles the day to day operations? A handful of board members.

Your insight is super. Thank you.





Posted By ToddR4 on 10/03/2017 2:33 PM

My point is a hired professional management company would eliminate internal politics




I doubt that internal politics would be eliminated.

Some areas may be escalated (because they have more time) and some areas may be decreased but politics will remain.



Posted By ToddR4 on 10/03/2017 2:33 PM

Guess who handles the day to day operations? A handful of board members.




Lets define day to day operations:

Collecting assessments, documenting in ledger and making deposits.
Collecting the bills and issuing checks.
Reconciling bank statements.
Take minutes of meetings.
Maintain records (filing).
Provide access to records for members who request (we place ours on a website)
Pay taxes as required
Oversee contracts (doesn't take long - just verifying work contracted for is accomplished).

ADHOC operations:

Solicit bids for contracts
Solicit bids for insurance
deal with problems (trees, etc.)
Enforcement issues
perform and update reserve study

Additional items depending on amenities:
Pools maintenance
clubhouse maintenance
dock maintenance
storm water management
etc.
Maintain
MelissaP1
(Alabama)

Posts:9136


10/03/2017 4:20 PM  
Sounds like someone who doesn't want to do the work so they rather sue. It is true suing your HOA is suing yourself and your neighbors. So guess you rather do that than "knock on doors"... Which is EXACTLY what you need to do! That is where the votes are at to get any changes. Behind those doors. No one said you can't stick a stamp on something and send it in behind them doors. (Legally MUST have a stamp on it if put in a mailbox). Don't want that expense? Walk to a door and greet a neighbor.

As for that person having a CAM license, that may be required in your state to be a MC. Some states require certain requirements to be met to qualify for such positions. Florida I believe is one of those states that requires certain licenses.

No one here made change by taking the easy way out. A lawsuit just creates an endless circle that eats itself till nothing left. It's the actual rules/regulations you find your answers. Which is an INSIDE source and NOT an outside one. So put up those bootstraps or sit back... That's the way a HOA works...

Former HOA President
AugustinD


Posts:2946


10/03/2017 6:01 PM  
Posted By MelissaP1 on 10/03/2017 4:20 PM
A lawsuit just creates an endless circle that eats itself till nothing left. It's the actual rules/regulations you find your answers.




I disagree. From my reading and personal experience (including being sued as a director), I think most HOA lawsuits do bring about good and fairly long-lasting change. From the start of my involvement in HOAs though, I have always thought the ethical, honorable and quickest route to change is via running for the board with other like-minded candidates.

I still remember the first motion hearing for the lawsuit where I was named with several others as a defendant. The pro se plaintiff's main claim was that he should not have to pay his dues, because he felt he was not getting the services of which the governing documents spoke. He had other objections to the HOA's operations, like how the Bylaws had some out-of-date sections that needed to be amended to comply with certain laws. At the first hearing, the judge looked at the HOA's attorney and snarled, "Is your client going to update these Bylaws?" The HOA attorney said, 'Yes, your honor.' It happened within 18 months. This is pretty good given that 2/3rds of the membership had to approve the new Bylaws.

Most of the lawsuit was frivolity, and the main claim was dismissed by summary judgment. But I feel a few good things came out of the lawsuit that compelled the HOA to operate more on the up-and-up.
GenoS
(Florida)

Posts:3684


10/04/2017 1:11 AM  
Posted By ToddR4 on 10/03/2017 2:33 PM
First, a community of 1,700 units should not be self managed.

I'll agree with that completely without even knowing any of the details. My HOA is 100 homes, we're self-managed and over the years (turnover and self-managed since 1994) things have really never gone particularly smoothly. A management company would help but the biggest effort on that front is the older homeowners want to amend the CCRs to restrict the board from hiring one without the consent of the homeowners. That amendment isn't going to happen, but that's the thought process of many.

I would suggest starting with FS 720.303(5). Send a written request, certified mail & return receipt requested, to the board (or the association's registered agent) requesting access to all relevant records of the association regarding X, where X is the plans, bids and estimated costs for the new clubhouse, monthly financial reports, and whatever else you think may be relevant. Do read FS 720.303(5) and familiarize yourself with the type of records you may demand to see. Also note that subparagraph (a) says:

"The failure of an association to provide access to the records within 10 business days after receipt of a written request submitted by certified mail, return receipt requested, creates a rebuttable presumption that the association willfully failed to comply with this subsection."

After 10 business days you are entitled to "damages" of $50 per day for each day past 10 that you are denied access to those records (for up to 10 calendar days to a maximum of $500). Get some of your like-minded neighbors to make requests, too. Send multiple requests for the different things you want to see. The law protects the rights of "annoying" homeowners who are a thorn in the side of the board when it comes to the official records. You can go to Small Claims court for each $500 claim if they do not give you what you want. This can quickly add up if more than one homeowner is making requests for access to the official records of the association.

Denying the right of owners to speak at board meetings is a clear violation of FS 720.303(2)(b). Unfortunately, there are no statutory damages awardable for the board's failure to do that. In a condo association, FS 718 would allow you to take the matter to low-cost arbitration with a state board, but in an FS 720 HOA you do not have that luxury; you have to go through (high-cost) mediation first before you can file a lawsuit (expensive) to compel compliance.

While the HOA law is on your side, it's not really on your side unless you have a boatload of money to spend on lawyers. Taking over the board or at least getting a few reformers elected is a much more cost-effective approach.

I'd start with the official records request. A few wins (you and others) of the $500 statutory damages will maybe wake some people up.
CarolF
(Florida)

Posts:433


10/04/2017 2:52 PM  
Todd - I'm curious about a few things...........Are you residing in Florida for the first time?
What attracted you to buy a home in your community?
ToddR4
(Florida)

Posts:23


10/05/2017 9:03 AM  
Carol,

I have lived in Florida for 40 years. Attracted - it was a gated community and was originally being developed by a AAA developer who ran into financial issues in the Great Recession and sold it to Taylor Morrison.

Of course, they cut corners and cost to build out remaining inventory. They are publicly traded, so the quarterly report is paramount.

HOA living is truly not for me.

Thanks
JoyceR2
(Virginia)

Posts:156


10/05/2017 10:11 AM  
Amen
TimB4
(Virginia)

Posts:16706


10/05/2017 3:22 PM  
Todd,

Please review the posting rules.
ToddR4
(Florida)

Posts:23


10/06/2017 8:42 AM  
Got it.....

My bad.....

Thank you.
Please login to post a reply (click Member Login on the menu).



Get 1 year of free community web site hosting from Community123.com!

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement