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CONDOS AND HOA'S ARE MORE DIFFERENT THAN YOU
MAY THINK
By
Eric Glazer, Esq.
Published
October 29, 2012
I'm hoping that after reading
this column today, those of you who live in an HOA will forward
some of these concerns to your local Senator or House Member,
because I don't even think they are aware of just how bad the
HOA statute is and how condominium owners have far greater
protections under the law than members of an HOA. For example:
Certification of Board Members: For
whatever reason, The Florida Legislature believes that it's only
important for condominium Board members to learn the law, be
familiar with their governing documents and get certified. HOA
members can just "wing it" I guess. Certainly, education should
be required for both HOA board members and condo Board members.
Anti Kick-back provisions: The Florida
Condominium Act contains a provision that makes it clear that
members of a condo Board cannot take anything in return for
awarding a contract to a vendor. The HOA statute is silent in
this regard. Apparently, The Florida Legislature doesn't care
if HOA Board members get a kickback.
Election Procedures: As we said last
week, The HOA statute is awful in terms of election and voting
procedures. The condominium statute on the other hand works
very well, provides for strict deadlines and procedures and even
participation by The Ombudsman's Office. Apparently, The
Florida Legislature doesn't care if apathy and voter fraud exist
in HOAs - but do care when it comes to condos.
Board members doing business with the
association: The Florida Condominium Act makes directors who
want to do business with the association jump through some
hoops. The contract must be disclosed, two-thirds of the other
directors must vote in favor of it and the unit owners can still
cancel the contract at the next owner meeting. The HOA statute
is completely silent in this regard. Apparently, The Florida
Legislature believes that HOA owners are not entitled to the
same safeguards against potential corruption as condo owners.
Removal of Board Members: The Florida
Condominium Statute specifically states that a director who is
charged with a felony for stealing the association's funds is
automatically removed from the Board of Directors pending a
determination of the charges. There is no such provision under
the HOA statute. It's amazing, but an HOA member charged with
stealing the association funds gets to stay on the Board. I'm
not surprised, considering that it took a million years for The
Florida Legislature to amend the HOA statute to prevent felons
from serving on the board.
Records Requests: In a condominium,
owners can be charged the reasonable expense for photocopies of
the records. In an HOA - you potentially get slaughtered
because the statute allows you to be charged personnel fees at
an hourly rate to make copies of the records for you. I know
there are many of you out there who have horror stories with
exorbitant bills from management companies requesting
unconscionable fees for copies of records. Sorry, apparently
The Florida Legislature believes that owners in condominiums are
entitled to receive records more quickly and at a cheaper price
than owners in an HOA.
Insurance: The Florida Condominium Act
requires the association to purchase fidelity bonding or
insurance for all people who handle the association's funds,
including the officers. There is no such mandate in the Florida
HOA statutes. Apparently, The Florida Legislature believes that
money only gets stolen from condos and not HOAs.
Warranties: The Florida Condominium
Act contains very detailed provisions that require a developer
to provide warranties to the condominium association and owners
subsequent to turnover from developer control to the unit
owners. The HOA statute on the other hand was recently amended
to specifically preclude the giving of warranties by the
developer to the HOA.
Regulation: Finally, Florida
condominiums are highly regulated by the Department of Business
and Professional Regulation. In fact, a developer cannot create
a condominium and sell units until and unless approval of the
condominium is granted by the DBPR. The Department also
provides educational materials to owners, has arbitrators on
staff, document examiners, investigators, and people to answer
your questions about the law. Homeowner associations have no
regulation at all. There is nobody to ask a question to, nobody
to complain to, and nobody to help you.
OK HOA owners, calm down, catch your breath,
and let me know how you really feel.
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