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LIABILITY FOR ACTIONS?
By
Jan Bergemann
Published September 18, 2020
I think it’s high
time that we are getting back to the ways when everybody was
held responsible for his/her own actions – not only in
homeowners associations and condominiums.
Let’s stop the blame
game and make sure that everybody pays the price for his/her own
actions.
No more: My superior
– or the board – told me to violate the laws. That excuse didn’t
work in Nuremberg and it shouldn’t work in Florida.
We see more and more
contracts between associations and community association
managers (or companies) that require the association to pay for
the defense of the manager (or the management company), no
matter who actually caused the complaint or lawsuit.
I honestly can’t
understand how a board member in his/her right mind can sign
such a contract. Do these board members even understand what
kind of financial liability they take on – at the expense of the
owners whose interest they are supposed to represent?
We see many legal
issues arising from record requests. The laws are very clear
about it and describe in detail what’s right or wrong and how
record requests should be handled.
But considering the
multitude of complaints about this topic it seems that many
board members and/or community association managers have a hard
time reading simple instructions. And even so-called specialized
attorneys seem to have serious problems interpreting the
statutes on this matter correctly.
But here the matter
of the blame-game comes into play.
Example:
RECORD REQUEST.
Let’s say the
request of an owner to inspect certain records is being ignored
by the management company, or the CAM in a response tells the
owner that he/she has to meet certain financial requirements or
time restraints in order to be allowed to inspect the records,
financial requirements and time restraints that are in most
cases not allowed by statutes.
In response the
owner files a complaint against the CAM license, because the CAM
in the association is responsible for managing and keeping the
records. Excuse of CAM in response to complaint to DBPR (written
by the association attorney and cost billed to the association):
I acted on orders of the board(president)!
Well, a licensed CAM
should know the laws and regulations, and if a board (member)
tells him/her to violate these laws or regulations, the CAM
should either refuse to follow these “orders” – or send a letter
to all board members, explaining that the orders in regards to
the record inspection request are violating the statutes and
that the board would be held liable for the cost of any legal
action. Then the liability would be back in the hands of the
board again.
Otherwise the CAM
should be liable – and pay for his/her own defense or pay for
the cost of a lawsuit filed by the owner.
This is just one of the many ways
an association having to pay for a costly lawsuit without being
the party actually causing the litigation, if the CAM contract
contains an indemnification clause.
Any board member should think twice before signing a contract
that would hold the association liable for the CAM’s actions.
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Jan Bergemann is president of Cyber Citizens For Justice,
Florida
's largest state-wide property owners' advocacy group.
CCFJ works on legislation to help owners living in
community
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associations. He moved to
Florida
in 1995 - hoping to retire. He moved into a HOA, where the
developer cheated the homeowners and used the association dues
for his own purposes. End of retirement!
CCFJ was born in the year 2000, when some owners met in
Tallahassee
- finding out that power is only in numbers. Bergemann was a
member of Governor Jeb Bush's HOA Task force in 2003/2004.
The organization has two websites to inform interested
Florida
homeowners and condo owners:
News Website: http://www.ccfj.net/.
Educational Website: http://www.ccfjfoundation.net/.
We think that only owners can really represent owners, since all
service providers surely have a different interest! We are
trying to create owner-friendly laws, but the best laws are
useless without enforcement. And enforcement is totally lacking
in
Florida
!
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