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Q
& A
Question:
After
reading 720.311(2)(a), I would appreciate clarification of
two questions.
It
says, "Disputes between an association and a parcel
owner regarding use of or changes to the parcel or the
common areas and other covenant enforcement disputes,
disputes regarding amendments to the association documents,
etc........... shall be the subject of a for presuit
mediation served by an aggrieved party before the dispute is
filed in court."
Does
this mean that, if:
1)
A HOA Board finds a homeowner to be in violation of a rule
of the documents or other Board established regulation
(which the documents permit them to do) and proposes a fine;
and
2)
In accordance with 720.305 (2)(a), a hearing by a committee
of at least three homeowners is conducted and that committee
agrees with the Board; but
3)
The homeowner refuses to pay the fine; then
4)
A court will refuse to hear the case unless the presuit
mediation process is used first?
If
that is true, what would happen if the homeowner refuses to
participate in the mediation?
Answer:
Yes,
the court should not hear the dispute until the parties have
submitted to the presuit, mediation procedures. I have
a case like this now. The Board filed suit without
going through mediation, as the law requires. After the
Association won the case in the trial court, the homeowner, who
had complained to the Trial Judge that the Association did
not comply with the requirement to mediate, won the
case, when the upper court reversed the ruling in favor of
the Association due solely to its failure to follow the
mediation process before filing the lawsuit. If
the homeowner refused to participate in the mediation
process, this would be a big mistake. If he eventually
sued, and if he eventually won in the trial court, his
victory could be reversed due to this failure to participate
in mediation.
Barry
Silver, Esq.
Question:
Together the president and the property manager, who is an employee of the management company, at the beginning of the fiscal year, terminated the accounting firm that had provided bookkeeping services for the past 10 or more years.
The long-term independent auditor CPA was contacted and he created a company to replace the terminated bookkeeping service. In a discussion with the president and property manager about who the new independent auditor will be, they both stated that the long time previous independent auditor will be the auditor.
I asked, “Is that not a conflict of interest for the CPA to audit the financial records prepared and generated by the company he owns?” The reply: “The attorney partner with the association’s law firm advised them there was no conflict.”
Florida Administrative Code 61B-22.006 (1) "...shall be performed by an independent auditor....”
V.K., Pompano Beach
Answer:
The reply doesn't tell you much. Just because an attorney says it is OK does not make it so. Ask them to have the attorney explain why it is OK to have this type of audit from one who may not be independent in light of the administrative code provision that you cite. There may be other rules governing accountants that come into play as well, and I would consult an accountant about that.
Barry
Silver, Esq.
Question:
At what point do Board Members and/or CAM license holders become personally liable for actions taken while in office?
K.J., Punta Gorda
Answer:
The Board members are rarely personally liable for their misdeeds. There is a whole body of law on this, but in general the Board members are shielded from personal liability unless they do something really bad, or in legal language, unless they behave outside of the scope of their duties, for instance by punching someone during a board meeting, personally profiting from their actions as Board members in an improper manner, or maliciously violating rules in a knowing and intentional manner, especially in order to carry out a personal vendetta against a homeowner.
Barry
Silver, Esq.
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