Tag: Florida

Should the Trayson family sue the HOA?

The Orlando Sentinel reported today that the Trayvon family lawyer, Benjamin Crump, has no intention at this time to sue the HOA. The importance of filing a lawsuit is paramount and is needed for justice.

The history of HOA governance has been the apathy of HOA members that allows boards to do as they please, and boards to allow HOA attorneys to, in reality, run the HOA along with the managers. HOAs have gotten away with no accountability under state protective laws, and by the obedience and acquiescence to board authority and pressures by passive members.

Suing the HOA would also serve as a wakeup call to this indifference to life and suffering  that can have severe consequences, in addition to raising ethical and moral questions for our society. That good intentions still must be measured against courses of action that have foreseeable consequences of serious harm to others.

An explanation for this apathy and groupthink by HOA members can be found in HOAs where members band together in support of their boards, “right or wrong,” was offered in Why do people harm others in HOAs?, which is based on the Milgram and Stanford Prison Experiments. I’ve informed homeowners of the areas of potential liability by HOAs and the impact on the membership in What is an HOA’s duty of care liability to its members and to all others?

However, the position by Mr. Crump not to pursue the HOA lawsuit at this time is understandable. The first concern is for justice and the arrest and trial of the killer, then an action against the failures of the Sanford police, and then get some $$$ from a wrongful death suit against the HOA to help pay the bills.

Trayvon — Zimmerman reported to be acting for HOA

This Philly.com AP report by Mike Schneider has the evidence. Why is national TV still avoiding the HOA’s role in this slaying?

The homeowners association’s February newsletter said that Sanford police had beefed up patrols in the neighborhood and that officers on bicycles were making random checks of front yards and backyards. It was not clear how big the neighborhood watch was, but Zimmerman was the dominant force.

“If you’ve been the victim of a crime within the community, after calling the police, please contact our captain, George Zimmerman … so we can be aware and help address the issue with other residents,” the newsletter said. It added that the neighborhood watch group was looking for more participants at its monthly meetings.

A vice president of the homeowners association didn’t return a call Wednesday.

See Phily.com for the complete article.

What is an HOA’s duty of care liability to its members and to all others?

State laws, in general, hold that the duty HOA board of directors is one of good faith, and as a fiduciary or prudent person with respect to the members, where “members” does not mean an individual member.  This is based on the nonprofit, membership corporation and HOA/condo Acts that can be found in almost every state.

But, what about tortious or wrongful acts under tort law negligence, or agency law, or real estate law on an owner liability for injuries to others on his property?  And there is also the charitable volunteer laws shielding all but grossly negligent acts by volunteers.   These laws apply although you can’t find them in your CC&Rs or in the HOA/condo statutory Acts, and the average board member probably has very little, if any, awareness of their applicability to HOAs.

I write as a lay person, because no one else is writing and the national lobbying organization is not likely to tell it like it is — nothing bad about HOAs.  Not even any of your state consumer protection agencies.  With respect to the Trayvon murder incident, I wrote about some of these HOA liability issues in, “What is the HOA liability for wrongful acts by its security officers?”   Information has come forth in the media that the Retreat at Twin Lakes, the HOA, either “hired” Zimmerman or at least had knowledge, or should have had knowledge, of Zimmerman’s history.

My initial research into the question of HOA duty of care under tort law of negligent acts revealed a few court cases that shed some light on this question.  The most recent case (The Landings v. Williams, No. A10A1956, GA App. 2011) is the mauling by an alligator of an 83 year old woman on the common property of the HOA in Georgia.  The woman was visiting her family and is an “invitee” (legal term pertaining to a third-party on property held out to the public), and the appellate court denied a motion for reconsideration and upheld the HOA to have a duty of care and was negligent in this instance.

In California, several related cases have been reported by attorney Jeffrey A. Barnett in “Aberrant Behavior in Associations.”  He references the California Supreme Court holding that,

the owner’s duty to provide protection from foreseeable third party crime has always been determined in part by balancing the foresee ability of the harm against the burden of the duty to be imposed . . . . The board can be liable for failure to take reasonable steps to prevent injuries from foreseeable criminal activity.  (Isaac’s v. Huntington Memorial Hospital,38 Cal 30 112 (1985)).

The Court further held (Frances T. v. Village Green Owners Assn., 42 Cal 3d. 490 (1986), “that a homeowners association has a duty to exercise due care for the safety of residents in those areas under the association’s control.”  And that,

the property owner’s duty includes exercising reasonable care to discover whether criminal acts are being, or are likely to be, committed upon the owner’s land. If an investigation would in all probability lead to the discovery of prior similar incidents to the occurrence giving rise to an injury, constructive knowledge of such incidents is imparted to the property owner, and the owner may be liable for the damage resulting from the criminal activity.  (Phillips v. Perils of Pauline Food Production, Inc., 35 Cal.App. 4th 1510 (1995).

The HOA board cannot be allowed to justify negligence of this magnitude in the Trayvon slaying by claiming that they are just poor unpaid volunteers working for the community.  No!  HOA boards must be held accountable like all other government officials and entities.  Our public officials and entities are not given absolute immunity, and neither should that be given to HOA boards.

For legislators: poster-child case of HOA extortion of homeowners

This Florida case is the poster-child for the “standard operation procedures” by rogue HOA boards. The situation heard too many times by this advocate, and amounting to legalized extortion because most homeowners cannot afford to go to court for justice. And the HOA, its management firm, and its attorney all too well know this!

The “see no evil, hear no evil, speak no evil” attitude of state legislatures and their misguided belief that the HOA, like any other business  are angels can do no wrong — and will protect the rights and freedoms of its members — must cease right now! This is another example of “us agin’ them” and the destruction of trust and social capital within HOAs.

The appellate court quoted,

“The trial court found that the complaint to foreclose the lien was premature. Agreeing with the trial court, the Third District noted, ‘Had the Association accepted and applied the tendered payments, the dispute would have been reduced to an inconsequential amount, and the Association’s attorneys could not in good faith have filed to foreclose the miniscule claim remaining.’ Ocean Two Condominium Ass’n v. Kliger, 983 So.2d 739 (Fla. 3d Dist. App. 2008).”

The court held,

“What can be gleaned from this record is that the association and its accounting methods were woefully inadequate to correctly ascertain and give notice of the amounts claimed to be due. Because of this imperfect record-keeping, the association did not make a proper claim of lien, nor did it give sufficient notice in its complaint of its claim. Had it done so, in all likelihood this case would not have even been filed. Saar showed that she consistently made the payments required and had detailed records to support her payments, many of which were not properly credited by the association. She paid all sums due in accordance with the notices and claim of lien.”

SAAR v. WELLESLEY AT LAKE CLARKE SHORES HOMEOWNERS ASSOCIATION, INC.

FL supreme court upholds private contract over constitution

 

This decision sounds really exciting, but . . . . . Read the relevant part of the Florida Supreme Court opinion (emphasis added):

 

The Grand’s declaration, which was filed in 1986, adopts the terms of “the Condominium Act of the State of Florida (Florida Statute 718, et seq.) in effect as of the date of recording this Declaration” and does not contain “as amended from time to time” language subjecting it to future statutory changes to the Condominium Act. See Angora Enters., Inc. v. Condo. Ass’n of Lakeside Vill., 796 F.2d 384, 386 (11th Cir. 1986) (noting that express agreement by parties in the declaration of condominium regarding application of future statutes to the association may determine whether parties have a “constitutional protection against future amendments to the Florida Condominium Act which, absent such an agreement, might arguably impair a party’s contract obligation”).   Cohn v. The Grand Condo Assn., SC10-430, (Fla.  3/31/2011).

 

In essence, the court is saying, as I’ve always opposed, that the people have the right to determine via a private contract whether the supreme law of the land, and of the state, applies to them.  And by constructive notice alone, without explicit consent, the courts hold that you surrendered your rights! This is wrong!  This “opt out” is ridiculous!  And it is an essential defect in the HOA/condo legal scheme – private parties can draft and file a document, especially a declaration, that exempts them from the application of the Constitution and laws protecting the people. So, why bother to have a constitution anyway?

 

Another advance for The New America of HOA-Lands.