Opinions Please

DanN3 (Florida)
Posts: 91

Posted:

Person A, an owner of a Florida condo unit, requests access to association records via certified mail to the association management company. The management company receives the certified mail and passes that mail to the association's manager. Person A receives no response to the records request and after the required period of time sues the association for $500 as permitted by law. The management firm is served. The served document were signed for by the receptionist or secretary of the management firm. She passed it onto the Association manager who apparently filed it away and did not inform the association board. When the case was scheduled to be heard the association did not show up thus person A was awarded $500.

The association has appealed the award seeking to have the result squashed. The argument is that the management company failed to notify the association BOD or president. A copy of the appeal was sent to person A. So in summary it is just the association before the judge on the appeal. The accused management company is not involved in the appeal nor is person A. The manager is now no longer working for the management company and the management company was replaced.

Does it look the association's appeal will prevail or does person A still get what he was awarded and perhaps the association can sue the subject management company?

DouglasK1 (Florida)
Posts: 2,046

Posted:

It's hard to predict what any given judge will decide. Since the MC was acting as an agent for, and under the direction of, the association, most likely the $500 verdict will stand.

You can sue the MC, again, it's a judge's call after hearing all the evidence, and a wild guess from people here who won't be hearing from both sides.

This must be going on in small claims court, otherwise the legal fees would be far more than the amount in question.

Escaped former treasurer and director of a self managed association.

DanN3 (Florida)
Posts: 91

Posted:

Yes.... Small claims court... the person represented himself......... statute allows for $50 per day to a max of $500 for each day the association withholds records access.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

Pay the money. Make sure this does not happen again and improve the process that caused the issue. Which is that the request should have been made to the HOA board itself and NOT the representative. Requesting a copy of records does not mean you can't charge for copies. The person A has the right to VIEW records. They want actual copies then I would make them pay for it since it does cost money to produce. They can always make an appointment to sit down and bring their own copying tools. HOA's should be open books but they don't need to pay for the book copies...

A judge will ONLY make your HOA "Whole". Which means if you decide to sue the MC, your just limited to get the $500 you paid out to Person A. Maybe legal fees for bringing the suit. That is NOT guaranteed. I would say this experience is a wash and improve how you all handle things. Suing your HOA is suing yourself and your neighbors... Lawsuits are always best to avoid in a HOA. They are a vicious circle...

Former HOA President

RichardP13 (California)
Posts: 3,868

Posted:

Having represented Associations numerous times over the years, I see your type of scenario all the time. Plaintiff or Defendant doesn't show up. The party that didn't show loses and the other party is awarded their award. The Defendant, if they lose can appeal and at that point, if they have an attorney, they can now represent their client in court.

My advise, if you still can, appeal the decision, but make sure you change the address for which the notices are sent. As Douglas stated, you don't know what a judge would do, but if the Association in the past has provided access to record they should prevail. If not, then forget the appeal, pay the fine and change the policies.

There is a way for this to not happen, but that is a different discussion.

DanN3 (Florida)
Posts: 91

Posted:

Agree always best to avoid litigation. You bring to light an interesting question. Lets say Person A still is to get $500 from the association. Lets assume there is no insurance coverage for the event. Thus the $ comes from the membership via association dues. Does a prevailing person, an association member, awarded $ in litigation against his association, have also to contribute to his own awarded payment as well ?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Quote:

Posted By DanN3 on 05/03/2017 6:45 PM
Agree always best to avoid litigation. You bring to light an interesting question. Lets say Person A still is to get $500 from the association. Lets assume there is no insurance coverage for the event. Thus the $ comes from the membership via association dues. Does a prevailing person, an association member, awarded $ in litigation against his association, have also to contribute to his own awarded payment as well ?

If a special assessment is imposed to pay the penalty, then yes.
If no special assessment is required, then the answer is still yes as the payment comes from the assessments that have already be levied and paid (or are being paid).

Just as a member who brings litigation to the Association would be responsible for their own legal expenses and their share of the Associations legal expenses (unless a judge determines otherwise).

RichardP13 (California)
Posts: 3,868

Posted:

Dan

A number of questions and comments.

1) How many units in your association.
2) Why didn't you get the $500.00 from the MC prior to changing companies, since it appears they were at fault?
3) I don't know of a HOA policy with just a $500.00 deductible, unless the premium is considerably higher.
4) A member who prevails would have to pay into a special assessment UNLESS a judge or commissioners decides against it.

Contrary to the one of the posters here, it sometimes pay to sue your association. Forget the nonsense that you are suing yourself. You could have a case where over many years the Association through the years have harassed one individual where one day the person says enough is enough and sues for $7M. If they win and there is a special assessment, they would only be responsible for one part of the number of units in the complex. The higher the number of units the better I like it.

Lastly, in re-reading the last part of your original post, you can't appeal based on the management was at fault. You still have to pay and then file a action against the responsible party you feel is at fault.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By DanN3 on 05/03/2017 12:48 PM
Person A, an owner of a Florida condo unit, requests access to association records via certified mail to the association management company. The management company receives the certified mail and passes that mail to the association's manager. Person A receives no response to the records request and after the required period of time sues the association for $500 as permitted by law. The management firm is served. The served document were signed for by the receptionist or secretary of the management firm. She passed it onto the Association manager who apparently filed it away and did not inform the association board. When the case was scheduled to be heard the association did not show up thus person A was awarded $500.

The association has appealed the award seeking to have the result squashed. The argument is that the management company failed to notify the association BOD or president. A copy of the appeal was sent to person A. So in summary it is just the association before the judge on the appeal. The accused management company is not involved in the appeal nor is person A. The manager is now no longer working for the management company and the management company was replaced.

Does it look the association's appeal will prevail or does person A still get what he was awarded and perhaps the association can sue the subject management company?

The association winds up paying the judgement.

The management company is the representative of the association. The association was legally served through its agent. The association failed to respond and the court issued a summary judgement in favor of the plaintiff.

The association has no defense.

I'd suggest that the association pay up - then tell the management company that it intends to terminate the management contract for cause unless the management company makes the association whole and covers the entire cost of the litigation

There - free advise at no cost

RichardP13 (California)
Posts: 3,868

Posted:

Nigel

In their first post the OP stated The manager is now no longer working for the management company and the management company was replaced.

I am sure they didn't recoup any monies from the MC to act in the best interest of the Association they were supposed to represent.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By TimB4 on 05/03/2017 6:52 PM

Posted By DanN3 on 05/03/2017 6:45 PM
Agree always best to avoid litigation. You bring to light an interesting question. Lets say Person A still is to get $500 from the association. Lets assume there is no insurance coverage for the event. Thus the $ comes from the membership via association dues. Does a prevailing person, an association member, awarded $ in litigation against his association, have also to contribute to his own awarded payment as well ?

If a special assessment is imposed to pay the penalty, then yes.
If no special assessment is required, then the answer is still yes as the payment comes from the assessments that have already be levied and paid (or are being paid).

Just as a member who brings litigation to the Association would be responsible for their own legal expenses and their share of the Associations legal expenses (unless a judge determines otherwise).

Would potentially depend on your State Laws. In my state the individual would potentially not be able to be assessed for any wrong doing as the injured party.

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By DanN3 on 05/03/2017 6:45 PM
Agree always best to avoid litigation. You bring to light an interesting question. Lets say Person A still is to get $500 from the association. Lets assume there is no insurance coverage for the event. Thus the $ comes from the membership via association dues. Does a prevailing person, an association member, awarded $ in litigation against his association, have also to contribute to his own awarded payment as well ?

FS 720.305(1) says:

"A member prevailing in an action between the association and the member under this section, in addition to recovering his or her reasonable attorney fees, may recover additional amounts as determined by the court to be necessary to reimburse the member for his or her share of assessments levied by the association to fund its expenses of the litigation."

Based on that, my layman's argument would be that Person A would be obligated to pay his portion of the $500, but if he prevailed in his (small claims) action to recover the $500 he was entitled to by law then he would also be able to recover his share of assessments used to fund the $500 payment.

You'll need the counsel of a licensed attorney to find out if that argument held any water, but the intent of the legislature seems to be clear. If Person A wins a court case against his HOA and wins, then the HOA has to reimburse Person A for his share of the association's costs.

DanN3 (Florida)
Posts: 91

Posted:

Answers

1- There are 115 units.
2- The BOD is not seeking the $500 from the MC. I agree with you though that that is the appropriate course of action.
3- I agree. Most seem to have $1,500 deductible or higher, especially if there is a history of bad Association conduct.
4- I respectfully disagree. I agree with another poster here that a prevailing party should not pay for part of his awarded money.

I agree with your argument about suing yourself. In some cases, if not many, insurance will pick up the award, less the deductible. I do understand that the association membership, less the prevailing party, would pay the bill or at least the deductible. So litigation should be a last resort. A good quality board who believes in the rule of law should always be sought is the only answer I have.

I lean toward agreeing with your last sentence. The appeal is that the judge erred in awarding the $500 to Person A because of improper service in the notification to the Association. I agree that the Association should pay the award and seek reimbursement of the award plus perhaps legal fees, if legal fee reimbursement is within the ability of the court. Typically, to make sure that Person A has standing, Person A has to show the court proof of proper notification and proper service. I am assuming that this was done.

Thanks for chiming in.

NigelB (Texas)
Posts: 254

Posted:

Quote:

Posted By RichardP13 on 05/03/2017 8:21 PM
Nigel

In their first post the OP stated The manager is now no longer working for the management company and the management company was replaced.

I am sure they didn't recoup any monies from the MC to act in the best interest of the Association they were supposed to represent.

Damn!!! Too late to get a refund on that speed reading course I took

RichardP13 (California)
Posts: 3,868

Posted:

Might if you took the course at Trump University.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By DanN3 on 05/03/2017 12:48 PM
Person A, an owner of a Florida condo unit, requests access to association records via certified mail to the association management company. The management company receives the certified mail and passes that mail to the association's manager. Person A receives no response to the records request and after the required period of time sues the association for $500 as permitted by law. The management firm is served. The served document were signed for by the receptionist or secretary of the management firm. She passed it onto the Association manager who apparently filed it away and did not inform the association board. When the case was scheduled to be heard the association did not show up thus person A was awarded $500.

The association has appealed the award seeking to have the result squashed. The argument is that the management company failed to notify the association BOD or president. A copy of the appeal was sent to person A. So in summary it is just the association before the judge on the appeal. The accused management company is not involved in the appeal nor is person A. The manager is now no longer working for the management company and the management company was replaced.

Does it look the association's appeal will prevail or does person A still get what he was awarded and perhaps the association can sue the subject management company?

If I were you I would pay the $500 and be done with the issue and keep in mind for it not to happen in the future. One potentiial issue is the BOD is responsible for overseeing your subcontractors and which the mgmt company is such subcontractor. You need to ask yourself how much are you willing to spend on attorney fees for $500??? I would agree that the mgmt company potentially should be the entity responsibe and if they do not take responsibility I personally would probably replace them. They potentially will loose a lot more money by loosing your HOA and potential future HOA business by not stepping up to the plate.

DanN3 (Florida)
Posts: 91

Posted:

I agree fully. However the board will not just pay the award and then take steps to try and make sure this situation does not happen again. It is an ego thing. They do not like Person A to the point they will spend far more than the $500 to try to make sure that Person A does not get satisfaction. I have seen this kind of behavior many times over the 30 years I had managed associations. Just too often human nature at work.

DanN3 (Florida)
Posts: 91

Posted:

How true that might be.

JanetB2 (Colorado)
Posts: 4,219

Posted:

Well ... Sometimes it is difficult or impossible to fix Stupid! Sometimes it is better to replace with smarter vs fixing stupid.

DanN3 (Florida)
Posts: 91

Posted:

I would not say stupid. Most times it is just a quest for power. There is no education. Most often, based on my experiences, a newly elected Board member is told where to sit and after that education is over. In Fla there is a document you sign saying that you swear to having read and abide by the governing documents. I have seen many sign but have not done any reading and have seen a good number of instances where the certification process was not in play at all. There is nothing that compels one to follow the rules. There is the DBPR in Florida, for condominiums, but they are useless, in my opinion, as they are understaffed and have very little power to enforce. An experienced director learns to know that quickly. When an owner is obviously right on an issue and gets no relief through administrative avenues and goes to court, it could take years and at great expense to get what is obvious justice. I would say that, after 30 years as a manager of HOAs and Condos that if you can, it is best to not be part of any association despite the benefits an association can potentially give.

KellyM3 (North Carolina)
Posts: 2,239

Posted:

I agree w/ Melissa. Eat the $500. You corrected the issue w/ the management change. Besides, it's easy to consume $500 in mental "worry" and still not find a solution better than firing the MC.

My opinion is that the association would be liable for the court judgement w/ the HOA then having cause to chase the management company over the negligence of filing the court order and not offering the board notification.

Have a great weekend!

JanetB2 (Colorado)
Posts: 4,219

Posted:

Quote:

Posted By DanN3 on 05/05/2017 4:26 AM
I would not say stupid. Most times it is just a quest for power. There is no education. Most often, based on my experiences, a newly elected Board member is told where to sit and after that education is over. In Fla there is a document you sign saying that you swear to having read and abide by the governing documents. I have seen many sign but have not done any reading and have seen a good number of instances where the certification process was not in play at all. There is nothing that compels one to follow the rules. There is the DBPR in Florida, for condominiums, but they are useless, in my opinion, as they are understaffed and have very little power to enforce. An experienced director learns to know that quickly. When an owner is obviously right on an issue and gets no relief through administrative avenues and goes to court, it could take years and at great expense to get what is obvious justice. I would say that, after 30 years as a manager of HOAs and Condos that if you can, it is best to not be part of any association despite the benefits an association can potentially give.

I personally would not own any property in FL which still has any Developer in control in any way shape or form. While your state has gotten a little bit better in past they essentially would allow a developer to somewhat defraud owners who purchased. Keep in mind a developer in beginning can choose anything under the sun they want to build and should abide by what was stated. They should not be able to overstate, go fishing for Consumers to purchase, and then defraud both the Consumer AND their Secured Creditor who lend large sums of money based on what was implied and expressed.

LOL ... I still abide by if they do not READ their governing documents ... it is defiantly Stupidity OR Stupidity laced with Lazy.