Q: One of our residents filed a lawsuit in small claims court against the homeowners’ association over the denial of his architecture review application. He wanted to install a fence that is prohibited under our covenants and we had no idea he was going to sue. I was told owners can’t just run to court over these arguments. What is the law on this? – T.P., Stuart
A: You heard correctly, but it requires some additional explanation. In a homeowners association, Chapter 720 of the Florida Statutes provides a dispute resolution mechanism that seeks to avoid inundating the court system with HOA disputes. Pursuant to Section 720.311 that mechanism is pre-suit mediation.
Some disputes must go through arbitration before the aggrieved party can file a lawsuit. This applies both to aggrieved owners and the aggrieved association. The statute provides a broad definition of “dispute” to include “use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association.” If the conflict involves any of these situations, the aggrieved party must offer to participate in pre-suit mediation.
This requires the owner or the Association to send a letter to the other with a summary of the conflict and an invitation to mediate. For clarification, mediation is a process where a neutral third party seeks to guide opposing parties to reach a resolution. The mediator does not pick a winner, but rather tries to facilitate a resolution allowing the parties to determine their own destiny as opposed to a judge or jury.
If the recipient of the invitation timely accepts, the parties are required to mediate. If the recipient of the invitation refuses to mediate, the consequence is that the rejecting owner is unable to recover attorneys’ fees if they end up prevailing in court. This is a significant and compelling reason to mediate.
In your situation, it appears the homeowners’ association never received an offer to mediate and this dispute falls into the category of “changes to the parcel”. You may be able to dismiss the small claims lawsuit for failure to follow any necessary procedures prior to filing the lawsuit against the association. I would recommend you consult with your legal counsel to determine the best course of action and you may also consider notifying your insurance carrier depending on your policy coverages and deductibles.
I should conclude by noting that the law applicable to condominiums is very different. In a condominium, the Florida Department of Business and Professional Regulation employs arbitrators who handle disputes between unit owners and condominium associations and the arbitrator then ‘picks a winner’. Both mediation and arbitration are alternatives to a courtroom, but the two are quite different.
Steven J. Adamczyk Esq., is a shareholder of the law firm Goede, DeBoest & Cross, PLLC. To ask Mr. Adamczyk questions about your issues for future columns, send your inquiry to: firstname.lastname@example.org. The information provided herein is for informational purposes only and should not be construed as legal advice. The publication of this article does not create an attorney-client relationship between the reader and Goede, DeBoest & Cross, PLLC or any of our attorneys. Readers should not act or refrain from acting based upon the information contained in this article without first contacting an attorney, if you have questions about any of the issues raised herein. The hiring of an attorney is a decision that should not be based solely on advertisements or this column.