What You Need to Know About Mandatory Mediation Between HOAs and their Homeowners

Before You Sue Your HOA—or Your HOA Sues You!

As you may already know, before certain suits may be filed by an HOA against one of its residents, by a resident against his or her HOA, or between two residents in an HOA, the parties must first take part in a pre-suit mediation conference to attempt to resolve the dispute. But exactly what types of disputes are we talking about?

The statute, by its terms, applies to “[d]isputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association.”  For more information, please take a look at Section 720.311, Florida Statutes.

The statute requires that, before filing suit, the “aggrieved party”—whether the HOA or the homeowner—send a written notice to the other party, setting forth the nature of the dispute and requesting that the party agree to take part in a mediation conference.  The form of the required notice is set forth in the statute.

A party refusing to take part in the mediation, or failing to respond to the request within the 20 days provided in the statute, will lose any claim it may have for attorneys’ fees and costs if it is the prevailing party in the ensuing lawsuit.  This can be a substantial penalty, since Chapter 720, Florida Statutes, provides for an award of attorneys’ fees and costs to the prevailing party in nearly all of the types of disputes which are subject to the mediation requirement.

As a twenty-year Certified Circuit Court Mediator who has focused a substantial portion of his litigation practice over the past thirteen years on community association disputes, I would be happy to assist parties to HOA disputes in fulfilling their mediation requirements and, more importantly, resolving their differences prior to embarking on expensive litigation. Please contact me at gschaaf@bplegal.com, or visit my website at www.bplegal.com/gschaaf, for more information.

Written by Gary M. Schaaf

Originally posted at Florida Condo & HOA Law Blog

Are you listening to me?

How many times have you tried to get an important message across to your community members only to find yourself frustrated with the feeling that nobody is listening?

I hear many listening-related complaints from condominium management professionals. These are the items that ail them. Do you suffer from any of the following symptoms?

The community website is rarely accessed.

The association newsletters aren’t very well read.

Mailed notices are going unnoticed.

Posted signs are being ignored.

Meetings are poorly attended.

Apathy is a sure sign that your community is not listening.

There are more sources of information bombarding your audience then ever before. TV, radio, billboard, newspapers, internet – our society is filled with a seemingly endless supply of banter aimed at getting the attention of your community members. You are competing with all those distractions when you try to get your message across. To be effective you must be creative.

What can you do?

Take a cue from the world of corporate advertising. Your message needs to stand out. Differentiate yourself from the crowd. Tell your story well and tell it often. Make your messages fun or dramatic. Develop a flare for promotion. Get help if you need it.

Think about some of the more successful communication stories in the world today and learn from them. “The Apprentice” has become a top-rated TV phenomenon. Even if you’ve never watched the show, you probably know who Donald Trump is and have you heard the show’s catchphrase “You’re fired!” way too often. Bad hairdo and oversized ego aside, Mr. Trump is a master of self-promotion. Yet you have something over him when it comes to communicating with your homeowners. You know where they live, how to reach them, and the specific items that they will find interesting. It’s time to put on your game face and show “The Donald” whose really got the right stuff.

I am not suggesting that you invoke the wrath of homeowners in your communities by firing anyone. What I am suggesting is that you learn how to compete with their other interests and speak to them in ways that they will take to heart. If you have not already done so, this would be a great time to take a look at branding your message. Branding is the concept of message consistency in all of your communications. Can you imagine any Donald Trump project without his name all over it? He wouldn’t stand for it because he knows the images invoked by his name help sell his products. Your branding efforts should be just as strong and consistent. Advertising agencies base entire campaigns around this concept and corporations pay millions of dollars for it. You can do it for free! Take that, Donald!

No one wants to be lectured to. Make sure your communications are upbeat. Take your cue from the political “spin doctors” out there who turn lemons into lemonade for a living. Let’s take that age-old problem topic for community associations everywhere – pet waste. Sure you can lecture until you’re blue in the face about fines and pooper-scoopers but it may not solve your problem. One association I work with recently addressed its pet waste problem with a friendly reminder mailed to home owners. The letter reads, “We love your pets but not their waste. Please clean up after your pet. The best way to have good neighbors is to be a good neighbor.” That’s a much nicer way to ask pet owners to behave responsibly than the stern warning of “Pick it up or pay a fine!”

The bottom line is that it doesn’t matter what you are saying if nobody is listening. If nobody is listening, you should reconsider your message and your message delivery methods. You can make a difference and your message will be heard. Are you listening to me?

Written by Bob Gourley at MyEzCondo.com

Clearly defining nuisance activity in your governing documents can help association boards avoid future headaches

A nuisance is generally defined as a person, thing or circumstance which causes inconvenience or annoyance. For some people living in shared ownership communities, there is no escaping a nuisance situation that has risen to a level which impacts the enjoyment of their homes and their community.

If you have ever suffered through a nuisance scenario, you may understand how hard it can be at times to achieve consensus on whether or not the activity in question is an actionable nuisance. Is that television really being played at a blaring decibel level or is the neighbor just particularly sensitive or, worse, looking for a new angle in a personal fight?

In a community association setting, nuisances can come in many forms.

  • Loud, consistent noise either in the form of music, yelling, use of electronic devices or failure to properly soundproof flooring in a multifamily building
  • Pets-barking, defecating, biting, and running around off-leash
  • Secondhand smoke-spilling into neighboring units, balconies and common areas
  • Odors from cooking, chemicals and other sources
  • Hoarding-creating conditions for insect and rodent infestation into neighboring units and common areas
  • Domestic violence-frequent arrival of emergency services and police at all hours
  • Visually unappealing property condition-one example would be an overflowing dumpster sitting in front of a house undergoing renovations for months
  • Short-term rentals

A general nuisance provision is standard in most developer-drafted documents. However, it is rare to find a nuisance restriction that is fully fleshed-out; one which clearly defines the various conditions or behaviors which constitute a nuisance in that particular communities and which can therefore be more readily abated by enforcement efforts. When confronted with a nuisance, the starting point is to find out what is driving the behavior or condition and identify the quickest way to resolve the problem. Sometimes the behavior is driven by a mental illness and other times it is a deliberate attempt to annoy.
If an owner is unwilling to cure the nuisance activity, the association’s options may include fining, suspension of common area use rights and pursuing a Court Order to force the behavior or activity to stop.  All enforcement will be easier if the activity or behavior is clearly identified in your governing documents as being a nuisance rather than having to debate the issue.

Next time you decide to update your governing documents, please discuss what changes should be made to your nuisance restriction with your association attorney.

Written by Donna DiMaggio Berger at The Community Association Law Blog

The Value of Education in Your Communications

For years, I have been writing about the importance of communication as it relates to community association living. I have stressed how important it is that you tell your story well and that you tell it often. Newsletters, letters, websites and any other tools used to communicate need to educate readers about what is happening within their associations and why.

As recently proposed legislation across the nation has shown, there has never been a time when communication and education efforts between Board Members, Property Managers, and unit owners have been more important. Community Association Volunteer Leaders at recent programs in my state of Connecticut have indicated there seems to be a vacuum of education between Board Members and unit owners regarding the responsibilities of each as it pertains to creating and maintaining a healthy and vibrant community association.

Let’s Begin at the Beginning

Educators have long asserted that the learning process begins at birth. The birth of a community association resident begins when they purchase a unit within your association. What can we do to begin the education process when a community association unit is put up for sale?

Currently, there are few or no regulations requiring the education of realtors as to the rights and responsibilities of folks who choose to live in community associations. In their profession, realtors are compensated in the form of commission which is only earned upon the successful completion of the sale. They are not required to notify the potential buyer of their rights and responsibilities prior to the completion of the sale.

Potential buyers are generally interested in the appearance and upkeep of the unit and the overall look and feel of the community. Again, there are no regulations regarding their education about their responsibilities once they become unit owners. In fact, as is often the case, their first dose of education often comes when they violate a rule or regulation resulting in a violation letter or fine. In a worst-case scenario, this can create a potential long-term conflict between the community association and its residents. At the very least, it can create a poor start to a new unit owner’s experience.

CAI has published a two-page pamphlet called “Rights and Responsibilities for Better Communities

Principles for Homeowners and Community Leaders” that is available, free of charge, athttp://www.caionline.org/info/readingroom/Publication%20Excerpt%20Library/rights.pdf

If a community were to adopt these practical guidelines and distribute them freely to realtors and potential purchasers, I think many of the problems that surface because of poor initial education efforts could be avoided. As a disclaimer, CAI says: “Like many worthwhile endeavors, community living cannot be free of conflict. Utopia does not exist. With all of their inherent advantages—and there are many—community associations often face difficult issues. While adopting Rights and Responsibilities will not eliminate all conflict, its adoption can stimulate communication, promote trust and cooperation, clarify expectations and build a greater sense of community. CAI urges you to take advantage of this opportunity.” And so do I.

Education is an Ongoing Process

Education, by its very nature, never ends. It is an organic and ongoing process. It also takes work and commitment. As a leader within your community, one of the worst mistakes you can make is to assume that all of your community members are educated as to the efforts of the Board of Directors and/or Property Manager. In fact, it is far better to assume that they don’t know what decisions you are making or why. Educating them as to what is happening and why is an excellent use of your time.

Recent regulations are aimed at providing unit owners access to the business proceedings of the Board. I suggest you take it a step further and engage your fellow unit owners with education about the challenges facing the Board and the decision-making efforts being made on their behalf. Dedicate a portion of your newsletter and website to education on a regular basis.

Commit to unit owner education. Reward yourself with a better community!

Written by Bob Gourley at MyEzCondo.com