Your neighbor’s dog is running off-leash and pooping all over your property; The kids next door are playing basketball on their portable basketball court and keeping you up late at night; you want to paint your house a particular color but the HOA’s architectural board says no; the HOA has accused one of its’ members of unlawful use of funds; and on and on. These are just a few of the cases that have come before Rich Smukler as a mediator. What many residents don’t realize is that before HOA’s disputes can be filed as a lawsuit, they must proceed to Pre-Suit Mediation.
As residents of properties located within a HOA can attest, there are many disputes that arise which serve to disrupt the peace of the community and quickly serve to rankle feathers. However, even where an actual violation exists (either on the part of the homeowner association or a member, guest, invitee, or lessee), it is likely that the parties must first submit to mandatory pre-suit mediation rather than immediately rushing to the courthouse steps. In this regard, the Florida Legislature has found that “alternative dispute resolution” has been successful in reducing court dockets and trials and offered a more efficient, cost-effective option to litigation. Fla. Stat. § 720.311(1). Accordingly, the parties must participate in mandatory pre-suit mediation before filing suit, unless a party is requesting emergency injunctive relief. The following items are “disputes” requiring submission to mediation before filing suit:
• Disputes 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
The pre-suit mediation process does not apply to the collection of any assessment, fine, or other financial obligation, including attorney’s fees and costs, claimed to be due or any action to enforce a prior mediation settlement agreement between the parties. Finally, it is important to note that election and recall disputes are subject to mandatory binding arbitration by the Florida Division of Condominiums, Timeshares, and Mobile Homes.
If a party fails or refuses to participate in the entire mediation process they will not be entitled to recover attorney’s fees and costs in subsequent litigation relating to the dispute, even if such party is deemed to be the prevailing party. Any party that fails to respond to a demand or response, to agree upon a mediator, to make payment of fees and costs within the time established by the mediator, or to appear for a scheduled mediation session without the approval of the mediator, constitute the failure or refusal to participate in the mediation process and operates as an impasse in the mediation pre-suit mediation by such party, entitling the other party to proceed in court and to seek an award of the costs and fees associated with the mediation. Fla. Stat. § 720.311(2)(b). Association counsel should be contacted to discuss the specifics of any outstanding violation and the process for moving forward with mandatory pre-suit mediation.