I’m hoping that after reading this column today, those of you who live in an HOA will forward some of these concerns to your local Senator or House Member, because I don’t even think they are aware of just how bad the HOA statute is and how condominium owners have far greater protections under the law than members of an HOA. For example:
Certification of Board Members: For whatever reason, The Florida Legislature believes that it’s only important for condominium Board members to learn the law, be familiar with their governing documents and get certified. HOA members can just “wing it” I guess. Certainly, education should be required for both HOA board members and condo Board members.
Anti Kick-back provisions: The Florida Condominium Act contains a provision that makes it clear that members of a condo Board cannot take anything in return for awarding a contract to a vendor. The HOA statute is silent in this regard. Apparently, The Florida Legislature doesn’t care if HOA Board members get a kickback.
Election Procedures: As we said last week, The HOA statute is awful in terms of election and voting procedures. The condominium statute on the other hand works very well, provides for strict deadlines and procedures and even participation by The Ombudsman’s Office. Apparently, The Florida Legislature doesn’t care if apathy and voter fraud exist in HOAs – but do care when it comes to condos.
Board members doing business with the association: The Florida Condominium Act makes directors who want to do business with the association jump through some hoops. The contract must be disclosed, two-thirds of the other directors must vote in favor of it and the unit owners can still cancel the contract at the next owner meeting. The HOA statute is completely silent in this regard. Apparently, The Florida Legislature believes that HOA owners are not entitled to the same safeguards against potential corruption as condo owners.
Removal of Board Members: The Florida Condominium Statute specifically states that a director who is charged with a felony for stealing the association’s funds is automatically removed from the Board of Directors pending a determination of the charges. There is no such provision under the HOA statute. It’s amazing, but an HOA member charged with stealing the association funds gets to stay on the Board. I’m not surprised, considering that it took a million years for The Florida Legislature to amend the HOA statute to prevent felons from serving on the board.
Records Requests: In a condominium, owners can be charged the reasonable expense for photocopies of the records. In an HOA – you potentially get slaughtered because the statute allows you to be charged personnel fees at an hourly rate to make copies of the records for you. I know there are many of you out there who have horror stories with exorbitant bills from management companies requesting unconscionable fees for copies of records. Sorry, apparently The Florida Legislature believes that owners in condominiums are entitled to receive records more quickly and at a cheaper price than owners in an HOA.
Insurance: The Florida Condominium Act requires the association to purchase fidelity bonding or insurance for all people who handle the association’s funds, including the officers. There is no such mandate in the Florida HOA statutes. Apparently, The Florida Legislature believes that money only gets stolen from condos and not HOAs.
Warranties: The Florida Condominium Act contains very detailed provisions that require a developer to provide warranties to the condominium association and owners subsequent to turnover from developer control to the unit owners. The HOA statute on the other hand was recently amended to specifically preclude the giving of warranties by the developer to the HOA.
Regulation: Finally, Florida condominiums are highly regulated by the Department of Business and Professional Regulation. In fact, a developer cannot create a condominium and sell units until and unless approval of the condominium is granted by the DBPR. The Department also provides educational materials to owners, has arbitrators on staff, document examiners, investigators, and people to answer your questions about the law. Homeowner associations have no regulation at all. There is nobody to ask a question to, nobody to complain to, and nobody to help you.
OK HOA owners, calm down, catch your breath, and let me know how you really feel.