Monday, February 6, 2012

Disturbing new trend impacting associations: don't like a judicial decision ... just change the law!

Two recent legislative attempts signal a disturbing trend that has the potential to negatively impact Florida's community associations.

The first is this year's construction defect bill, HB 1013, sponsored by Representative Artiles and its Senate companion, SB 1196, sponsored by Senator Bennett. These bills would take away a homeowner's rights to pursue a developer for defects to the driveways, roads, sidewalks. utilities, drainage areas and other so-called "off-site" improvements that are not located on the lot on which a home is constructed or which are located on such a lot but do not contribute to the "habitability" of the home.

These bills are a knee-jerk reaction to the case of Lakeview Reserve HOA vs. Maronda Homes wherein the 5th DCA agreed that a homeowners' association has a right of implied warranty for improvements such as roads, driveways, etc. The case is now on appeal to the Florida Supreme Court but apparently, Florida developers are not content to wait and see if the Florida Supreme Court agrees with the 5th DCA.

The developers' lobby has not only managed to secure sponsors for these bills but when they ran up against opposition last week in the form of HB 1013 not being put on the agenda for the Business and Consumer Affairs Subcommittee chaired by Represenative Doug Holder, they got the bill re-referenced to the Judiciary Committee. For sports fans, this was a nice "end run" around Representative Holder's Committee.

The developers' lobby has been spinning these bills to our elected officials as the necessary antidote to safeguard future development in the State of Florida. The fact that new construction has been stalled for the last several years due to the economy and the inability to secure financing is apparently of no consequence. The entire problem seems to rest with the fact that the Maronda case would bankrupt developers who don't build defect-free roads and sidewalks.

The other legislative attempt to overturn a judicial decision came in the form of Miami-Dade County seeking to clarify that Public Housing Agencies are not required to tender Section 8 rent to associations demanding same from delinquent owner/landlords. This proposal flies in the face of an order issued last year by Judge Hoy in the 15th Judicial Circuit wherein the Palm Beach Housing Authority was required to tender its share of rent on behalf of a Section 8 tenant directly to the Willoughby Estates POA. This was a significant victory for the association since the PBHA's share of the rent was $1,509 while the tenant's share was only $275.00. The PBHA refused to comply with association's demand for rent until ordered to do so by Judge Hoy.

Fortunately, Miami-Dade County's attempt to reverse this ruling legislatively appears dead for the moment but it once again underscores the desires by some who find themselves on the losing end of a court battle to get a "do-over" via the Legislature.

1 comment:

  1. I think it is great that the developer lobby is at odds with the lawyer lobby.
    Perhaps the know...the poor saps who pay the bills will come out a little better off.
    And please don't tell me homeowners win when their attorneys sue developers. Tell that story in Nevada....although you will have to go through the metal detectors in prison to interview the lawyers there.