Dispute Resolution of Condo Controversies Outside the Courtroom: Settlement, Mediation, and Arbitration of Condo Association and Selective Enforcement Controversies

Posted By on April 19, 2012

The State of Florida does its part to protect home owners living in shared residential communities (condominiums, timeshares, mobile homes) not only through the passage of legislation designed to assist in the resolution of disputes that may arise, but also by the creation of an agency designed especially to resolve controversies:  the Florida Department of Business and Professional Regulation’s Division of Florida Condominiums, Timeshares, and Mobile Homes.

Floridians living in these types of communities are given state government assistance through things like education, developer disclosure regulation, and help in resolving disputes by mandating pre-lawsuit procedures of mediation and arbitration.   Specifically, the Division has the power and duty to enforce the following Florida Laws:

For example, the Division provides online information regarding how community associations and condominium boards work, providing information like the following:

41. As a unit owner, why are my rights restricted as to the use of my individual unit and the common elements?

Restrictions on the use of both the individual unit and the common elements help to preserve the best interest of all unit owners. Your association documents should detail any restrictions such as types of window coverings, pets, rentals, parking and the number of unit occupants.

Condominium: Section 718.112(3)(b), F.S. / Cooperative: Section 719.106(2)(b), F.S.

Florida Statutes Control Alternative Dispute Resolution of Conflicts Between Condo Owners and the Condo Board

The Florida Legislature has passed specific laws that regulate the resolution of controversies between condominium owners and the condo association’s board.  Found in Florida Statutes 720.311 and 718.1255, these laws work to define and detail how all sorts of controversies can be resolved without having to file a formal lawsuit in a Florida court.

From Florida Statute 720.311:

(1) The Legislature finds that alternative dispute resolution has made progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to litigation. The filing of any petition for arbitration or the serving of a demand for presuit mediation as provided for in this section shall toll the applicable statute of limitations. Any recall dispute filed with the department pursuant to s. 720.303(10) shall be conducted by the department in accordance with the provisions of ss. 718.112(2)(j) and 718.1255 and the rules adopted by the division. …

(2)(a) Disputes 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 shall be the subject of a demand for presuit mediation served by an aggrieved party before the dispute is filed in court. Presuit mediation proceedings must be conducted in accordance with the applicable Florida Rules of Civil Procedure, and these proceedings are privileged and confidential to the same extent as court-ordered mediation. Disputes subject to presuit mediation under this section shall not include the collection of any assessment, fine, or other financial obligation, including attorney’s fees and costs, claimed to be due or any action to enforce a prior mediation settlement agreement between the parties….

From Florida Statute 718.1255:

(4) MANDATORY NONBINDING ARBITRATION AND MEDIATION OF DISPUTES.—The Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business and Professional Regulation shall employ full-time attorneys to act as arbitrators to conduct the arbitration hearings provided by this chapter…. The decision of an arbitrator shall be final; however, a decision shall not be deemed final agency action. Nothing in this provision shall be construed to foreclose parties from proceeding in a trial de novo unless the parties have agreed that the arbitration is binding. If judicial proceedings are initiated, the final decision of the arbitrator shall be admissible in evidence in the trial de novo.

(a) Prior to the institution of court litigation, a party to a dispute shall petition the division for nonbinding arbitration.

Larry Tolchinsky’s Tip:

Condominium controversies – especially those with a selective enforcement defense – can be complicated to resolve and stressful for everyone involved.  Clearly, the sooner that the conflict is resolved, the better for everyone; filing a formal lawsuit should be the last resort for any fight between neighbors.  You all have to live together, right?

Still, things should be fair.  One owner should not get treated differently than another, which is what the selective enforcement defense is all about.

What Florida law provides is all sorts of avenues to fix any unfairness in the application of covenants, rules, and regulations by Condo Boards on condo owners in the least stressful and least expensive means possible: alternative dispute resolution.  The most common form of ADR we’re all aware of:  two people set down at a table and resolve their dispute between the two of them.  This kind of informal settlement of a conflict is the best thing possible for two neighbors and for a condo owner and a condo board.

However, when things escalate – and sometimes that’s necessary – then Florida law offers different ways to find a solution.  Mediation involves a third party mediator who facilitates the negotiations.  As described above, that mediation will hopefully succeed but need not be binding on the parties.

Arbitration is a more formal and more serious form of alternative dispute resolution.  In arbitration, you waive your rights to things like a jury trial and allow the Arbitrator to make the decision on what will happen.   Arbitration can only apply in certain situations.

Whatever the method of resolution — informal settlement, mediation, arbitration, or lawsuit — condo owners fighting against things like selective enforcement should be aware of their legal rights as defined in Florida law and the best way of insuring this is the case is by having an experienced Florida condo lawyer on their side.   There are longstanding precedents in this area of the law that can be helpful – but only if the condo owner is aware of their existence.

If you have questions or comments, please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com or (954) 458-8655

Comments

3 Responses to “Dispute Resolution of Condo Controversies Outside the Courtroom: Settlement, Mediation, and Arbitration of Condo Association and Selective Enforcement Controversies”

  1. Jeanette Rizzo says:

    Can an HOA treat one unit owner differently than an other; i.e. can the do mold removal for one then months later refuse to do it for an other ???
    I understand that this is NOT exactly selective enforcement because it is not enforcement of a rule. It does involve selective treatment — which I am sure the judge who wrote the opion on selective enforcement forcused on.

  2. Hi Jeanette,
    Thanks for writing, first of all — it takes time and effort to stop and write a comment to a blog post and your doing so is appreciated! As for your question on one unit getting mold removal and another getting nixed, I would need to know more before I could answer your question. I’m tempted to list a bunch of questions here, but that doesn’t set right with me because it’s inviting us to dialogue about specifics and I am concerned that someone might read that in the future and think they could just cut and paste that to their situation, and end up getting hurt in the process. Hate to be frustrating here but I’d be happy to chat with you on the phone about this if you’d like to call me at the number shown on the screen here. It’s free, and I’m happy to talk with you if you want to chat on this yucky mold question.
    Thanks again,
    Larry

  3. Thomas Kopf says:

    I have been denied use of my common recreational facility in my condominium development for 2 years now ! I have never paid a asessment late , I pay a assessment of 117.00 per month with-in my overall 465.00 monthly assessment for the recreational facility ,but I have been suspended from use without a proper hearing per 718.302 (3) The DBPA complience Division will not help me , The Arbitration Division says they have no jurisdiction and it’s all a almost hopeless mess! DBPR is a joke ,Tool of the Developers ! But if you want to contact me take a shot at it. Best Tom

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