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RE Q&A: Can Board President Demand Mediation?

A condo HOA director received a demand letter for pre-suit mediation over parking but never received a warning or violation letter first. Is this legal?

WEST PALM BEACH, Fla. – Question: I am a director of my HOA and firmly believe that I am being harassed by the president, who clearly dislikes me and my constant disagreement with his decisions, which are most of the time emotional, careless and outside of the governing documents.

I received a demand letter from the HOA lawyer for a pre-suit mediation for, apparently, having broken a rule (parking related – the rule does not clearly indicate that I broke any rule by the way). I never received any letter (warning or violation) on this, just the letter from the lawyer.

Our bylaws are as follows: “In the event of a violation (other than non-payment of an Assessment or fee by an Owner) of any of the provisions of the Declaration of Covenants, these By-Laws, the Rules and Regulations of the HOA or the Articles of Incorporation of the Association, the HOA, after reasonable notice to cure not to exceed (15) days, shall have all rights and remedies provided by law and in the Declaration of Covenants including without limitation (and such remedies shall or may be cumulative) the right to sue for damages, the right to injunctive relief and, and in the event of a failure to pay Assessments fees, the right to foreclose its lien provided in the Declarations.”

I was not given any reasonable notice to cure … is this condition enough to prevail in the event of a litigation?

Florida Statute 720.311(2)(a) reads: “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, 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 shall be the subject of a demand for pre-suit mediation served by an aggrieved party before the dispute is filed in court.”

It does not indicate anything regarding rules disputes (it only refers to covenants and bylaws). It is also my understanding that Florida courts have held that board-created rules and regulations do not carry the same presumption of validity as covenants. Legally, this means they can be more readily challenged. Finally, rules and regulations must be reasonable, not arbitrary or capricious and have some objective basis.

I find myself totally defenseless having to deal with the HOA’s lawyer. This is the first time that I know of that a violation of a rule is handled this way. The HOA has always followed due process when enforcing rules, as clearly defined in the HOA bylaws.

I contacted the HOA lawyer to see if we could resolve this in a friendly way but he demanded I pay his legal fees to resolve the dispute. I am afraid that they will force me to go to mediation, but that their lawyer’s ultimate desire is to proceed with the suit.

What should I do?  – L.L.

Answer: Dear L.L.: First, I do think that a rules violation is subject to mediation pursuant to the HOA Act. Disputes subject to mediation include “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.” The first part – “use of the common areas” – would encompass common area parking rules.

I also think that you have a valid argument that the HOA did not follow its own required procedures, in that it did not provide you with the notice to cure. With that said, it’s not a guaranteed outcome at trial, and it’s not going to stop the HOA from suing you – and of course the further this gets, the greater the risk that you could be responsible for the association’s legal fees if they prevail.

It’s not entirely clear to me from the description of your dispute whether there is a continuing rules infraction. If there is not, what is the mediation for? Did they fine you and you failed to pay the fine? Perhaps what’s going on is that you were violating (or violated) a rule, and instead of fining you or sending you a demand to cure, they simply went right into the demand for mediation – which they are allowed to do.

But there is a real question, now that the violation is corrected, as to whether they would be entitled to recover the legal fees incurred in sending you the mediation demand. That’s going to depend on the language of your governing documents and whether costs of enforcement can be collected form you in the absence of a lawsuit.

Unfortunately, a lot of your response is going to depend on money – the cheapest option may very well be to just pay the lawyer and move on. But, if the principle is important to you and you can afford the fight, I recommend that you immediately hire an attorney to push back against this lawyer and try to make the rest of the board see reason.

© Copyright 2023 The Palm Beach Post. Ryan Poliakoff, a partner at Backer Poliakoff & Foelster, LLP, is a Board Certified specialist in condominium and planned development law. This column is dedicated to the memory of Gary Poliakoff. Ryan Poliakoff and Gary Poliakoff are co-authors of “New Neighborhoods – The Consumer’s Guide to Condominium, Co-Op and HOA Living.”