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 on May 21, 2013

Miami Condo Skyline North Beach

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.

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Do you have questions or comments? Then please feel free to Chat with Larry in the comments below, at info@hallandalelaw.com, 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.

“I’m happy to take your call.”

Comments

3 Responses to “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?”

  1. Bonita Lacy says:

    We have a unit at 12955 NE 6th Ave #311, N Miami, when we acquired the property Dec 2011 but the deed came in Feb 2012, there was water damage from a unit upstairs. The property management was to make the repairs and since that time (the deed was changed) we have been attempting to correspond with the HOA on the repairs and condition of the property the property manager never respond. We requested the bylaws and invoices for fees to no avail. We decided to sell the property at a reduced cost of over 10K from our asking price because of the lack of maintenance and condition of the property deteriorating. Again we tried to reach HOA and Property Manager , the attorneys for the buyer tried to no avail to get a payoff. Finally they (Property Management Co) said to me after calling for three months constantly that the fees were 6400, I explained that I never received anything from them on the property and I made a requested this time writing (email) what we needed, they refuse to still send anything with even that fee on it, finally they said that they still had the Bank listed as the property owner.I sent them the deed and told them it has been over a year since the property manager called me back and that I have been calling every three months in reference to have they made the repairs they did not return calls to me. He finally said two weeks ago that the repairs had been done a while back but did not say exactly when, I explained that I did not receive notice by posting or otherwise and requested the expenditures from the HOA, contact of the HOA members to try to get this fee reduced, he said that he could not give me their information. I called the state and had them to send me the Bylaws but have not received the invoice for when the repairs were done. I think that we should not be responsible for a HOA fee for the term that the unit was unoccupied and we did not know that the repairs were made. Knowing the lack of communication withholding of information and lack of return calls were due to the way they choose to do business no fault of our own. Now we are told they are cleaning the building, placing lights in the halls, got rid of the maintenance people but for us it is too late. When I asked for an estoppel they are now telling me we need to pay $250 for it and that the fees are over 7K now. $272 a month for a 1 bedroom unit with 710 sq ft no amenities except under bldg parking, elevator which is in poor condition. We are a non profit we were going to place domestic violence women in the unit for safety but we cannot afford to do that we have to request funds a year in advance. We need help to resolve this I committed to sell the property for $18500 I promised $3,000 for the person to go to the unit to see what the problem is and to try to work it out and get it sold, they brought the buyer to the table and have been trying to work with the HOA to get the information, if we owe them (HOA) $7 ,000 for their fees we are almost completely at a loss with the property. I tried to get them to write off the fees since the property was not repaired, we did not make any repairs because we could not find out the condition up until two weeks ago verbally the water is not on, the leaked area in the bath inside the unit still is not repaired to date.
    We need help, do you do any pro bono work for non profits? Please call me 404-289-5277, the buyer is threatening to back out of the deal, what are our options. I don’t know if he will try to force us to sell or if he will sue us for the contract loss to him.

    I have several email correspondence with the chain of events recently.

  2. Leonard says:

    I have an issue where my condo board has targeted/singled me out when in forcing a rule and I already have proof of it .I just don’t know the next step or who I can contact

  3. Hi Leonard,
    We can’t answer personal questions here in general blog comments but we’d be happy to chat with you about it if you want to give us a call!
    Thanks,
    Larry

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