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THEFT IS THEFT – BE IT TRASHCANS OR OTHER PRIVATE
PROPERTY!
By
Jan Bergemann
Published
October 11, 2013
The
trash can caper in a HOA in
Kissimmee
[Kissimmee
HOA walks off with residents' trash bins]
is just the latest report about HOA boards going wild. I
sometimes really wonder if some board members honestly believe
that they are above the law. HOA board member or not: THEFT
is THEFT!
Being a board member doesn’t mean that you have card
blanche to break the law. Merriam Webster’s definition of the
word THEFT: "... the felonious taking and removing of personal property with intent to
deprive the rightful owner of it." They removed the
trash containers from private property and deprived the owners
of its use. That's just it -- it sure fits the definition.
In
this case I actually blame the association attorney for this
“theft of private property”. Richard B. Weinman, Of
Counsel to the law firm of Winderweedle, Haines, Ward and
Woodman in Orlando
, wrote in a letter dated August 19, 2013 – copy to the
Osceola Sheriff’s Office – that they will remove all
trashcans and recycling containers that are still in plain
sight. The attorney’s reasoning: "The
Association is authorized, pursuant to the Restrictions, to
enter upon the owners' property and correct the owners'
violation(s) thereof."
Correct
violations sure doesn’t mean theft – minimum not in my
opinion. And in my opinion it really takes balls to tell the
Sheriff’s office that you will steal other peoples’ property
– and announce it in a letter. And that’s what I think the
letter clearly does!
But,
according to the Sheriff’s office, it’s the board president
Sherry Raposo who is in trouble. According to an e-mail sent to
Channel 6 (clickorlando.com)
by the Sheriff’s office, the Sheriff’s office forwarded
three Petit Theft charges to the State Attorney's Office for
review. See: “Deputies
seek larceny charges against
Kissimmee
HOA president in trash can caper.”
If
I would be one of the board members I would most likely file a
malpractice lawsuit against the attorney and the law firm for
giving me advice that landed me in hot water. This board, even
if it didn’t use common sense, clearly followed the advice of
counsel when ordering the landscaping company to remove the
trash containers from the properties. I am pretty sure the
association president wouldn’t have ordered the removal of the
trashcans without having seen the written opinion of the
attorney.
In
recent times I have seen a lot of letters from attorneys that
just made me shake my head in disbelief. It seems recently every
attorney who needs to create some billable hours claims to be
specialized in community association law. And that are the guys
who come up with opinions that get the board members, who rely
on these opinions, in serious legal problems.
My
advice to board members: It’s great to get legal advice. But
not all legal advice is “good” advice – some advice really
“stinks.” Board members shouldn’t just blindly follow the
association attorney’s advice word for word – they should as
well use common sense. Wouldn’t common sense tell you that you
break the law if you take other peoples’ property from their
private property?
And, as this case clearly shows, the board president is in
trouble of getting arrested – not the attorney who most likely
sent a bill for the advice that possibly gets the board
president arrested!
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