Before You Sue Your HOA—or Your HOA Sues You!
As you may already know, before certain suits may be filed by an HOA against one of its residents, by a resident against his or her HOA, or between two residents in an HOA, the parties must first take part in a pre-suit mediation conference to attempt to resolve the dispute. But exactly what types of disputes are we talking about?
The statute, by its terms, applies to “[d]isputes 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.” For more information, please take a look at Section 720.311, Florida Statutes.
The statute requires that, before filing suit, the “aggrieved party”—whether the HOA or the homeowner—send a written notice to the other party, setting forth the nature of the dispute and requesting that the party agree to take part in a mediation conference. The form of the required notice is set forth in the statute.
A party refusing to take part in the mediation, or failing to respond to the request within the 20 days provided in the statute, will lose any claim it may have for attorneys’ fees and costs if it is the prevailing party in the ensuing lawsuit. This can be a substantial penalty, since Chapter 720, Florida Statutes, provides for an award of attorneys’ fees and costs to the prevailing party in nearly all of the types of disputes which are subject to the mediation requirement.
As a twenty-year Certified Circuit Court Mediator who has focused a substantial portion of his litigation practice over the past thirteen years on community association disputes, I would be happy to assist parties to HOA disputes in fulfilling their mediation requirements and, more importantly, resolving their differences prior to embarking on expensive litigation. Please contact me at [email protected], or visit my website at www.bplegal.com/gschaaf, for more information.
Written by Gary M. Schaaf
Originally posted at Florida Condo & HOA Law Blog