If there is one discrepancy between condominium and homeowner association law that makes absolutely no sense, it’s the laws regarding litigation, arbitration and mediation. Let’s take each type of community separately:
For Condominiums: Florida Statute 718.1255 requires that certain “disputes” start out in arbitration before the Department of Business and Professional Regulation.
“dispute” means any disagreement between two or more parties that involves:
(a) The authority of the board of directors, under this chapter or association document to:
1. Require any owner to take any action, or not to take any action, involving that owner’s unit or the appurtenances thereto.
2. Alter or add to a common area or element.
(b) The failure of a governing body, when required by this chapter or an association document, to:
1. Properly conduct elections.
2. Give adequate notice of meetings or other actions.
3. Properly conduct meetings.
4. Allow inspection of books and records.
(c) A plan of termination pursuant to s. 718.117.
(ALL OF THE ABOVE TYPES OF CASES MUST START OUT IN ARBITRATION AND CANNOT GO TO COURT)
“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. THEREFORE, THESE TYPES OF CASES CAN GO RIGHT TO COURT – NO ARBITRATION REQUIRED.
Let’s say that a case starts out in arbitration. The arbitrator may still refer the case to a “mediator.” If the case does not settle at mediation, you would think that the case would simply return to the arbitrator. Think again. Either party can say they no longer want to arbitrate, and the arbitrator loses jurisdiction. If the parties want to continue to fight – it’s now off to court. All of the time, money and effort spent at arbitration was wasted. Does this make any sense?
Next week we’ll talk about how cases start involving HOAs. The difference is extreme.