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).
                  [2].               Donna S. Bennett, Condominium Homeownership in the United States: A Selected Annotated Bibliography of Legal Sources, 103:2 L. Libr. J. 249, 255 (2011).  
                  [3].               Rugaber, supra note 1.
                  [4].               Id.
                  [5].               See Joseph E. Adams, Community Associations: 1998 Survey of Florida Law, 23 Nova L. Rev. 65, 66 (1998).
                  [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.
                  [7].               See also Adams, supra note 5.
                  [8].               Brian L. Weakland, Condominium Associations:  Living under the Due Process Shadow, 13 Pepp. L. Rev. 297, 298 (1986).
                  [9].               Id. at 298–99.
                  [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.  
                  [11].            Ch. 2017-188, 2017 Fla. Laws at 1–3
                  [12].            Id.
                  [13].            Id. at 7–9.
                  [14].            Id. at 2.

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