A Potential Shift in Tide: Is the Sunshine State Leading the Charge Towards a Tighter Grip on Association Boards ?
Scheherazade
Ferrand
While
the condominium as a form of property ownership within the United States was a
relatively novel concept during its’ inception, unfortunately, the existence of
abuse within this market has not been.[1] Since the late 1950s, when condominium
legislation was first introduced within the United States,[2]
individual states have used state amendments to take their condominium
legislation within their own separate directions.[3] Florida, being one of the first states to
welcome condominiums with great popularity,[4]
has seen its’ own fair share of confusion with its’ Condominium Act.[5] After a history of continued revision, the
legislature has recently adopted an amendment, HB 1237,[6]
geared towards ending much of the corruption and fraud which has seemingly
accompanied this semi-communal form of property ownership.[7]
Within the world of condominiums and
homeowner associations, there are roughly three powerful layers of legal
direction guiding unit owners, association board members, and developers.[8] These include existing judicial rules, state
statutes, and constitutions.[9] This article focuses on the effect that
existing state statutes —and the state agencies charged with enforcing these
statutes— have on these groups, and proposes an adoption of the Florida
Legislatures recent legal changes by states across the country.
The many complaints heard throughout
the State of Florida have led to legislative action and a potential shift
which, if furthered and replicated within other states, appears to have the
ability to finally develop a legal equilibrium amongst the many competing
factions within the United States condominium market.[10] Florida’s recently passed legislation, HB
1237, hints that a shift towards tougher enforcement of condominium issues on a
more local level, through the use of prosecutors, may be exactly what the
doctor prescribed to cure the ills of condo corruption within the State of
Florida.[11] This new piece of legislation addresses the
concern of election fraud seen throughout the state[12],
owner access to condominium documents[13],
and existing conflicts of interest while also attaching a possible criminal
penalty for violations.[14]
To conclude, while property
ownership has been typically viewed as distinctly local in nature, there are
certain concerns which have seemingly found themselves in most of the United
States. Much of these problems with vexatious
litigation, election fraud, and self-dealing have for the most part seemingly
gone unabated. In addressing many of
these concerns it appears that the Florida Legislature has taken a giant leap
in the right direction, in terms of consumer protection, with the recent
passage of HB 1237. Given that many
states throughout the United States have faced similar complaints and looming
concerns within this sector, it appears rational for states to begin to follow
the shift taken by the Florida Legislature.
[1]. Walter Rugaber, Few States Protect Condominium Buyers, N.Y. Times (June 16, 1974), http://www.nytimes.com/1974/06/16/archives/few-states-protect-condominium-buyers-only-a-few-states-have-real.html;
See Evan
McKenzie, Privatopia: Homeowner Associations and the Rise of
Residential Private Government 108-09 (1994).
[6]. See Joseph E. Adams, Survey
of Florida Law: Community
Associations: 1996 Survey of Florida Law,
21 Nova L. Rev. 69, 70 (1996).
Additionally, HB 1237 has also at times been used interchangeably with SB
1682. See Fla. CS for CS for HB 1237 (2017) (proposed Fla. Stat. § 718.111); See also Fla. CS for CS for SB 1682
(2017) (proposed Fla. Stat. §
718.111). Both Bills were generated
simultaneously within both the Florida House and Senate, ultimately passing
with unanimous approval after a little revision. Id.
[10]. Brenda Medina, Bad Condo Boards, Beware: Legislature Passes New Laws Unanimously, Miami Herald (May 1, 2017), http://www.miamiherald.com/news/business/real-estate-news/article147952959.html;
C.M. Guerrero, Crack Down on Condo Abuses,
Miami Herald (Mar. 20, 2016, 1:00
PM), http://www.miamiherald.com/opinion/editorials/article67241137.html.
