Managing Disputes Within Your HOA
The need for conflict resolution is in high demand in the homeowner’s association (HOA) space with 24% of all HOA owners cited in a CAI survey as saying that they have had a conflict with their HOA. These conflicts often deal with residents and owners complaining of HOA harassment, negligence and generally unfair treatment. If you are a member of an HOA, you can benefit from being aware of your options for conflict resolution.
Options for Conflict Resolution
Many members have an impulse to take legal action against their HOA when they find themselves in an escalating conflict. However, several US states (including Florida) limit residents’ rights to take an HOA to court. Not being able to sue an HOA, leaves disputing homeowners with a reduced set of options including negotiation, mediation and arbitration. Collectively, these three options comprise the alternative dispute resolutions (ADRs) that can be used outside of the courtroom to take action.
Before Taking Action
Early in the process, before the situation escalates to the need for ADR, homeowners can benefit from seeking professional legal counsel with experience in managing HOA-related cases in their area. An experienced HOA lawyer will be able to review the homeowner’s rights and responsibilities as they are laid out in the HOA’s Covenants, Conditions, and Restrictions (CC&Rs). Experienced HOA attorneys in Florida will also be able to reference Florida Statute §720.301 that governs HOA law and determine a strategy that best fits the needs of the homeowner.
Having an attorney involved early in the process gives homeowners the advantage of dealing with their HOAs on an equal footing. After all, HOA’s tend to have their own legal counsel close at hand during a dispute. Many HOA’s may even have lawyers with some HOA experience as part of their leadership. Therefore, if you are a homeowner, be sure to set up an initial consultation with an experienced HOA lawyer prior to attempting to “go it alone” in the first stages of a dispute with your HOA.
Negotiating with an HOA
In an ideal world, any disputes that arise between a homeowner and an HOA can be resolved through a process of negotiation, the least costly method of ADR in terms of time and money. Entering the negotiation process with full knowledge of homeowners’ rights and responsibilities according to the HOA’s CC&Rs and Florida statute gives a homeowner leverage without the need to resort to threats, angry words and other tactics that could escalate the HOA dispute unnecessarily.
In general, negotiation is best done in response to a well-written letter of grievance. If you are a homeowner involved in a dispute, your grievance letter would be a formal letter of complaint to your HOA setting out in a legally valid argument what your grievance is and when it started. A good letter of grievance will also include how you may have attempted to resolve the issue informally and then state any proposals for resolving the issue through more formal negotiation.
Your HOA lawyer may be present during the negotiation with a view to resolving the conflict before it advances to more costly and time-consuming methods of ADR. Importantly, they would have drafted and reviewed any written communications with the HOA (including the grievance letter) and advised on negotiation strategies and potential outcomes of negotiation prior to the meeting.
After negotiation, the dispute may still not be resolved to the satisfaction of all parties. If this is the case, the dispute will proceed to the next level of resolution: mediation.
Mediating with an HOA
Mediation is a form of more formal negotiation managed by a neutral third-party professional called a mediator. During mediation, the mediator listens to both the homeowner and HOA and assists both parties in finding a middle ground resolution that would resolve the dispute. Many association documents mandate that the HOA (or condo association) and homeowner attempt mediation to resolve their dispute prior to taking more aggressive legal action.
Both the homeowner and the HOA must agree on a third-party mediator. The mediator, who is typically an experienced real estate lawyer who is familiar with HOA law, must be paid for their service. Generally, the two disputing parties share equally in paying the mediator’s fee.
Unlike a judge in a court of law or arbitration scenario, the mediator does not impose a decision on the disputing parties. No pressure is made to reach a resolution to the dispute during a mediation. Therefore, for mediation to be a success, parties must arrive at the mediation with a willingness to compromise. If not, the conflict is likely to advance to the more costly, time-consuming and formal ADR method of arbitration.
Unlike a judge in a court of law or arbitration scenario, the mediator does not impose a decision on the disputing parties.
Going to Arbitration with an HOA
The most escalated form of ADR is called arbitration. Arbitration differs from mediation since the third party involved, the arbitrator, takes the role of a judge in deciding how the dispute should be resolved. Like a court of law, the arbitrator hears arguments from both sides and reviews evidence before making a final decision.
Arbitration can be costly since the time required to prepare legal arguments for arbitration is similar to what would be required in a court of law. The decision made by the arbitrator is legally binding so, if you are in an HOA dispute likely to go to arbitration, it is highly advisable to have legal counsel on your side as early as possible.
Arbitrators are typically lawyers with a background in HOA law and may be one lawyer or a panel of lawyers.
South Florida Law
The complexities of Florida’s HOA and condo association law make it difficult for the average homeowner to navigate disputes. If you are a homeowner in a dispute, be sure not to “go it alone”. Here at South Florida Law we have boutique firm attention to detail with the big firm resources necessary to draft and review communications with your HOA and represent you as a homeowner in mediation, arbitration and even in court. Call us today for an initial consultation on 305.900.8885 or reach out via our contact form.