Florida Condo Owners: When Can Owners Go Directly to Court and File a Lawsuit and Not Be Forced to Mediation or Arbitration For Claims Against A Condo Board or Association?
Posted By Larry Tolchinsky on May 21, 2013
South Florida Condo Ownership is Different Than Owning a Single Family Home
For those looking into buying a Florida condo, as well as those who own a condominium either as their home or as an investment property, one of the key considerations in this type of real estate ownership is the reality of dealing with an association or board. Buying, owning, or renting out a single family home often means you make certain decisions yourself: can or will there be a hot tub?; what color will your front door be?; what kind of pets can your kids have in the house?
Owning a single family home (which is not part of a homeowner’s association) also means that you have the responsibility for all the upkeep and maintenance. Yearly checks of the air conditioning system? Your job. Making sure that there’s not a leak in the wall behind the dishwasher? Your job. And if repair is needed, it’s up to you to get that done – and to file a claim with your homeowner’s insurance coverage as needed.
Condo ownership is different, and for many, the difference of sharing common areas and sharing responsibility for things that a single family home owner shoulders all alone is one of the big benefits of owning a Florida condo. It can be especially nice if you own a condo as a second home or as an investment and not be nearby to check on things – knowing that there is a Board of Association watching over the property can be comforting.
Many see this as being smart, and so they buy a condominium in South Florida because they know they can leave a lot of these chores to the local “authorities.”
Condo Boards, Community Associations: Powerful Entities Given Rights Under Florida Statutes
As we have posted about earlier, these kinds of properties have specific laws and regulations that govern them. Boards and Associations can wield lots of power in their arena; when some go bad, owners can feel like they are living in a fiefdom where the Board acts as ruler, issuing edicts and forcing compliance at its whim. Many, many controversies arise every day between individual owners and governing bodies over owner’s desires to do or not to do some act.
Rogue condo boards and community associations defend themselves against claims of individual owners everyday. These kinds of cases are so commonplace that alternative dispute resolution has been implemented. The Florida Legislature has passed special laws to deal with the situation, explaining:
(3) LEGISLATIVE FINDINGS.—
(a) The Legislature finds that unit owners are frequently at a disadvantage when litigating against an association. Specifically, a condominium association, with its statutory assessment authority, is often more able to bear the costs and expenses of litigation than the unit owner who must rely on his or her own financial resources to satisfy the costs of litigation against the association.
(b) The Legislature finds that alternative dispute resolution has been making progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to court litigation. However, the Legislature also finds that alternative dispute resolution should not be used as a mechanism to encourage the filing of frivolous or nuisance suits.
(c) There exists a need to develop a flexible means of alternative dispute resolution that directs disputes to the most efficient means of resolution.
(d) The high cost and significant delay of circuit court litigation faced by unit owners in the state can be alleviated by requiring nonbinding arbitration and mediation in appropriate cases, thereby reducing delay and attorney’s fees while preserving the right of either party to have its case heard by a jury, if applicable, in a court of law.
What does that mean? An individual owner is unable to immediately file a lawsuit in civil court over his or her challenge to the Board or Association, no matter how meritorious, because certain complaints must be heard before a Mediator or Third Party Arbitrator.
See Florida Statute §718.1255 which discusses alternative dispute resolution, voluntary mediation and mandatory nonbinding arbitration between a condo owner and the board of directors.
Not All Disputes Are Routed to the Conference Table in Mediation or Arbitration: Instances Where An Owner Can Sue
There are key exceptions to the Florida laws that push unhappy condo owners to mediation and arbitration, and one of them involves defining the type of dispute that is involved. There are certain controversies that are considered so serious that they go directly to a civil lawsuit where a judge will preside over them.
Disputes are defined here by Florida Statute §718.1255(1), which provides that:
“Dispute” does not include any disagreement that primarily involves: title to any unit or common element; the interpretation or enforcement of any warranty; the levy of a fee or assessment, or the collection of an assessment levied against a party; the eviction or other removal of a tenant from a unit; alleged breaches of fiduciary duty by one or more directors; or claims for damages to a unit based upon the alleged failure of the association to maintain the common elements or condominium property.
Bottom line? Condo owners with the following complaints can file their lawsuit without concern about a preliminary mediation or arbitration:
- real estate title issues to the unit
- real estate title issues to a common element
- issues over a warranty’s coverage (interpretation of the warranty’s language)
- issues over whether or not a warranty covers something
- conflicts over fees or assessments levied or collected against someone
- eviction or removal of a tenant
- breaches of fiduciary duties of the Board or Association Directors
- claims against the Association or Board for failing to do their duty regarding care and maintance of common areas.
Larry Tolchinsky’s Tip: When you have a title issue, a damage claim because of common area mishaps like a shared air conditioning system causes damage, a pipe servicing several units bursts and causes water damage in your unit, or a sewage line breaks, and the ruling authorities don’t promptly address your needs, then that’s when you can simply file a lawsuit and ask the Court for help.
Own a Florida condo? Follow our posts under the topic “Condos and Townhomes” here on AboutFloridaLaw.com.
Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at firstname.lastname@example.org, or (954) 458-8655. If you have a specific or personal situation, please call or email Larry because he can’t answer specific fact questions in general comments.
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