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Home Sweet Home

by Edward P. Ahrens
February 2008 Edward P. Ahrens
It still holds true that man is most uniquely human
when he turns obstacles into opportunities.
Eric Hoffer, 1902-1983

Home Sweet Home, huh? Well, maybe not always. Especially not, when the homeowners association is looking over your shoulder. And they often will, since you agreed to live in a heavily regulated community subject to all its requirements that you were, or should have been, put on notice of when you bought your home. And, when you are alleged not to have complied with those restrictions and covenants, the Florida Legislature has assured a means either for you to seek redress of an association’s abuse or an efficient and cost effective means for the association to seek redress for your violation, such as it may be.

For a number of years now, disputes between homeowners’ associations and homeowners have been resolved through mediation pursuant to Florida Statutes Section 720.311. Indeed, my experience reflects a gradual but notable increase in the mediations of such cases. While not cost free, it certainly beats full blown litigation with all its attendant delays, high costs, stresses and uncertainties.

But now, the reason for this commentary and for my puzzlement over the remedy sought in many of these mediations… The downside of many such proceedings, when brought by the homeowners association for a homeowner’s alleged infraction, is the cost of mediation relative to the infraction alleged. Not infrequently, the mediation costs are well beyond, sometimes twice the cost of the remediation.

There is no secret to the subject matter of an association’s Statutory Offer to Participate in Presuit Mediation. The infraction must be clearly set forth in the Offer. Mediators that help to resolve these disputes (and, not coincidentally, derive some income for themselves) have little control over the arrangement agreed upon by the parties.

Nonetheless, I find it incomprehensible, in too many cases, that a homeowner would be willing to spend several hundred dollars, not to mention perhaps the association’s recovery of its legal expenses, when, in many cases, doing a little resodding of their lawn would mollify the association’s concerns and comply with its rules. To further compound and complicate these disputes, a large percentage of such mediations end up as “no shows” by the homeowners, which only delays the inevitable and prompts the demand for arbitration or the filing of a suit, usually the latter, thus running up the tab that much more.

All that said, thank goodness for the mediation process in helping folks iron out these dilemmas without the costly and wasteful recourse to litigation. Of course, this is true only when and if the disputants are willing to utilize the process as intended.

While I cannot speak for other subdivisions, I live in a community with guarded security and that is subject to general rules and regulations and architectural control design standards. In my personal involvement with the architectural control committee, I have never found it to be unreasonable in its interpretations and in its proposed solutions for conditions that are not clearly stated in the rules, regulations and design standards and that fall within the discretion of the control committee. Ideally, the yardstick for determining a violation consists of a community standard that assures the maintenance of the community in a manner consistent with the best interests of the residents and the maintenance of the property values of the properties therein.

Are there abuses or unreasonable interpretations by homeowners associations? Of course. Which is one of the reasons why we have mediations and, hopefully, reasonable resolutions of disputes between the associations and residents.

My only wish is that the participants comply with the rule of reason.

Biography


Ed Ahrens has been a member of the Florida Bar for over 43 years. He is a certified state and federal court mediator in Tampa, Florida. He is also a freelance writer and former president of National Writers Association, South Florida Chapter. He is the author of the popular book, The Perils of Imprudent Writing-How to Watch What You Write and Stay Out of Court, now in its second edition. See VanBurenBooks.com and FloridaMediationGroup.com for additional info on Ed and his writings.

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Website: www.FloridaMediationGroup.com

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