The recent arrests of Hammocks Community Association members have cast a long-overdue light on the plight of helpless homeowners when the directors of a homeowners association (HOA) go deliberately wrong.
The Florida Legislature specifically designed the state’s HOA law to limit government’s ability to regulate HOAs, explaining, “It is not in the best interest of homeowners’ associations or the individual association members thereof to create or impose a bureau or other agency of state government to regulate the affairs of homeowners’ associations.”
While this may be a virtuous conceptual approach, it has created the unintended consequence of leaving homeowners with little, if any, protection or opportunity of redress when HOA board members raid association bank accounts. In this criminal case, we believe the evidence can prove the theft of well over $1 million of homeowners’ monies. But we think the actual loss is much higher.
Sadly, we have seen instances of greedy or unscrupulous board members take advantage of this lack of oversight before. They often hide their misconduct by making it extraordinarily difficult and expensive for homeowners to effectively access and examine any records. Ironically, homeowners typically are stuck paying exorbitant legal fees for accessing information to which they should be entitled. Current law renders the only Florida agency with the slightest regulatory authority, the Department of Business and Professional Regulation (DBPR), impotent to provide the oversight that HOA residents deserve. The law also makes it unnecessarily burdensome for law-enforcement officers to obtain evidence of wrongdoing.
In 2016, I brought similar problems regarding condominium oversight and financial records accessibility to the attention of our grand jury. Their detailed report included a number of recommendations to alleviate the problem. While condominiums are not HOAs, the problems of records accessibility and financial mismanagement are surprisingly similar.
Homeowners in HOAs should be protected. Based on experiences learned during our criminal investigation, the Florida Legislature can take several steps that would go far to help vulnerable homeowners throughout Miami-Dade County, and all of Florida, without creating the government overreach the lawmakers rightfully wished to avoid:
▪ Amend the HOA law to include the same minimal protections given to condominium owners.
▪ Amend the HOA and condominium laws to provide criminal penalties for the destruction of association records or the failure to provide records upon lawful request.
▪ Amend both statutes to include criminal penalties for election fraud.
▪ Amend the law to allow DBPR to oversee HOAs and condominiums more effectively. At a minimum, the Legislature should authorize DBPR to inspect records and to personally fine board members for failing to comply with the law or provide reports to members in a timely manner.
▪ Expand the Florida condominium ombudsman’s ability to oversee condominiums and allow the ombudsman to review HOA complaints.
I was gratified to see the Miami Herald’s Editorial Board recognize some of the challenges we face during our ongoing criminal prosecution and continued investigation into the Hammocks Community Association and the clear need for focused change in the oversight of Florida’s thousands of HOAs.
As always, I would welcome the opportunity to work closely with any of our legislators who want to address the homeowners victimized by one of Florida’s largest HOAs. This issue is far too important to ignore.
Katherine Fernandez Rundle is the Miami-Dade County state attorney.