An Opinion By Milena Macias, Esq.
CCFJ Legislative Affairs Committee Chair
Published July 27, 2021
Approximately 350 years ago, a French mathematician and philosopher, Blaise Pascal contributed the words above.
It seems to me that not much has changed over the past 350 years -- and that Pascal’s words are perhaps more relevant today than ever.
Perhaps now is the time to finally make sure that what is just – is also strong.
1. JUSTICE WITHOUT STRENGTH IS HELPLESS.
In terms of justice being accorded to homeowners and condominium owners – do we really know what we are buying (other than a view?) And, even if we do, how to we ensure justice?
Florida law attempts to protect and educate prospective real estate buyers to require that a seller provide the “governing documents” of the community (declaration of covenants, the articles of incorporation, the bylaws, and the rules and regulations. (HOA: 720.401.F.S., COA: 718.503 F.S.)
Sounds good – right? Nope. Like the instruction booklets for appliances we buy are often left in a drawer – real estate buyers fail to review the documents and leave it stuffed in the large envelope it came from without opening -- concentrating instead on their fulfilled dream about having a beautiful view.
Since Florida law does not require an attorney to handle or review the documents, perhaps we should consider requiring real estate firms handling the sale and buy of properties involving associations (both condominiums and homeowner) associations to have their clients take a class (either in person, via zoom or on the internet) acquainting various general terms. (Of course, a waiver for the real estate investors who hold expertise can be waived.) There is no need to fear this kind of common sense, since its already used on other investments, including stocks, under KYC (the “know your customer”) rule.
All of these measures are easily integrated with the current voluntary anti-money fraud mitigation on the books.
Face it: people spend more time looking at different cars and their functions and Carfax -- rather than take the time to learn that they entering the most important financial investment in buying their new home.
Years ago, a clothing store had a motto: “an educated consumer is our best consumer.” I think that should be the motto here in Florida.
No how much we want justice, simply wishing upon a star -- did not and will never avoid the tragedy and disaster in Miami at Champlain Towers South with the countless loss of precious human life.
Moreover, even if an owner or prospective buyer wanted to learn or conduct “due diligence” to satisfy themselves (either at Champlain Towers South or other North Miami building built at least 40 years ago) -- – a quick glance at the Miami Dade website will clearly disappoint them.
“RECORDS BUILT BETWEEN 1961 AND 1972 AND PORTIONS OF 1973 THRU 1978 WERE DESTROYED AS OF JANUARY 1, 2001 AND ARE NOT AVAILABLE.”
(available at: https://www.miamidade.gov/permits/plans/building-originals.asp)
What? Really? How does this two-line statement above attempt to achieve justice for us? It doesn’t.
Without the ability to obtain and view such records either from the Building Department or elsewhere, owners are then rendered helpless (through no fault of their own) and cannot validate permits relating to their building or unit from years ago, especially if they are subsequent owners.
Over the 40 plus years, did the County, its employees, agents and/or interns attempt least to contact the older buildings in an attempt to reconstruct some semblance of records.
After a tragedy (and as with most matters), it seems that the County Building Department is scrambling to inspect, under the auspices of “Unsafe Structures Pursuant to Miami-Dade County Code Sec. 8” to examine unsafe structures.
It’s too late for Champlain Towers South, but it’s time time that government officials, including local and officials ensure that buildings are inspected properly before another tragedy occurs.
1. STRENGTH WITHOUT JUSTICE IS TYRANNICAL.
The Building Department should “enforce codes and regulations established by the State of Florida and Miami-Dade County governing the construction, alteration, and maintenance of buildings and structures within the City of Miami for the protection of residents and property,” but the General Records Schedule GS1-SL for State and Local Government Agencies records only require retention for residential properties are for tens anniversary years after issuance of certificate of occupancy. (available at https://bldgappl.miamidade.gov/microfilm ).
With all due respect to the local and government officials, we are in the 21st century, and retentions of records should not be only ten years. The advent of the computer age allows records to be held on different servers as storage (i.e., cloud.) for all years.
Remember, that these records are not only valuable for historical use, but also provide the appropriate documentation for all other owners of property in the future. At this point, all we get is that some lines that the materials are not available …..
How is that justice, again?
2. UNABLE TO MAKE WHAT IS JUST STRONG …
While we are not all equal in terms of our talents, we are (or should be) treated equally under the law to ensure justice.
Lady Justice, either as a sculpture or a mural is adorned in many courthouses. Displayed as a blindfolded woman, carrying a sword in one hand and a set of scales on the other hand, she represents objectivity, so that a person’s identity, beauty, wealth, power, and race are to be administered fairly and equally under the the law, without corruption, favor, greed, or prejudice.
It is safe to assume that Lady Justice was never acquainted with the business judgement rule….
The business judgment rule in Florida law requires directors to discharge their duties in good faith; with the care an ordinarily prudent person in a like position would exercise under similar circumstances; and in a manner they reasonably believe to be in the best interests of the corporation. Fla. Stat. §607.0830(1).
Unfortunately, owners living in associations in Florida are subject to the whims of any current board, who have their own agendas, including ignoring their governing documents for their own self benefit.
When confronted, the cowards and bullies on the board seek shelter under the business judgment rule, by running and hiding behind the association lawyers skirts.
As for the “excuse” that if we eliminate or limit the provision of the business judgment rule -- no one would want to be on a board is meritless. If that’s the case, those persons should not be on the board in the first place. Who are we fooling by giving sanctuary to board members?
There ought not be any room in our hearts for cowards or bullies, nor the attorneys who choose to represent them, twisting the law as they see fit.
For example, if a board knows that there is an individual issue on an enclosed balcony -- and instead makes it an “association” issue because the President and Vice President have enclosed balconies – who are we kidding?
And, if a board decides to put in toilets and change faucets in every unit … when that is clearly a unit owner’s responsibility – to get “liked” or for their own personal use (so they don’t have to pay for it.)..
Or, if a board removes an owners belongings from their storage units (without even letting the owner know) and then ignores at least three emails from the owner – and then “sics” the association’s attorney on the owner (causing the association to pay for the attorney fee), and the attorney then tries to cower and bully the owner (and when presented with evidence to the contrary answers … they will get back to you, and never do…)
Reality suggests that because the association has unlimited funds (and if not, special assessments are then mandated) – there is nothing for a board to lose and much to gain in their quest for power.
Reality also suggests that most people don’t understand the instructions on how to initiate an arbitration with the DBPR, nor do they have funds necessary to start a lawsuit (even if they do pro se, in addition to paying court fees, process servers and the like, there is a lot of money to be spent – at the same time, associations simply put in a call to their insurer, pay the deductible, and use all efforts to defeat the owner… how is that fair?
And, when an attorney seeks to protect the board or a board member – rather than ensuring that they are acting in a manner which provides and opines on the association as a whole, and not the board, they are certainly not fulfilling, “The Rules Regulating The Florida Bar”
4.…WE HAVE MADE WHAT IS STRONG JUST
Not acting in the best interest of their members, many boards silence their members and instill fear by various methods, including arbitrary fines and commencing unnecessary lawsuits. We can change that and we don’t need to reinvent the wheel (though we may have to change a tire or two).
Averting tragedies should not include salivating attorneys, engineers and others who see the opportunity to make money off any one particular tragedy. If we really want to make what is “just strong” then boards, LCAMs and association attorneys should all be held liable.
Further, rather than useless meetings and reports that currently being promulgated costing time and money, or those salivating about how to make money on this tragedy …
Let’s take the law that has already been used in other areas and use it: that’s common sense.
For example, Section 21(a) of the Securities Exchange Act of 1934 (“the Seaboard Report”) is a guiding light…
1. Self-policing prior to the discovery of the misconduct, including falsification of permit and other documents, and also including establishing effective compliance procedures and an appropriate tone at the top;
2. Self-reporting of misconduct when it is discovered, including conducting a thorough review of the nature, extent, origins and consequences of the misconduct, and promptly, completely and effectively disclosing the misconduct to the public, to regulatory agencies, and to increase the efficiency of the DBPR relating to associations, by engaging and training more employees
3. Remediation, including dismissing or appropriately disciplining wrongdoers, modifying and improving internal controls and procedures to prevent recurrence of the misconduct, and appropriately compensating those adversely affected; and
4. Cooperation with law enforcement authorities.
If we can get these goals done, we can successfully say that by righting for our rights -- that we can make just strong! I hope that this is the direction we are going to… and I encourage you to work with us in making this dream a reality.