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How to Avoid Litigation

Within large communities, disputes can transpire relatively quickly, sometimes making the specter of litigation loom a little too close.  Litigation can be costly – creating both financial and social strain within a community; typically making it a final option after all other choices have been exhausted.

Fortunately, there exists alternative dispute resolution options; notably mediation and arbitration, making it possible for conflict resolution before disagreements escalate and end up in the court room.

“For the most part, harmony rules over co-ops and condos more so than conflict,” says attorney Ramon C. Palacio, Esq., partner with Association Law Group, P.L., which has offices in Fort Lauderdale and Miami. “Fortunately, in most condominium associations, the conflicts between board members and residents are minimal, as residents who choose to live in a condominium understand that with the advantages of not having to worry about maintaining the exterior of their home, roofing, painting, or even landscaping, for example, come certain restrictions. Those restrictions may be as common sense as keeping the noise level down and may also include the requirement to obtain approval from the association before renting the unit.”

Some communities are more prone to conflict, especially smaller ones, where disagreeing residents are more likely to interact with one another. “When a resident fails to pay the unit’s assessments in a timely manner, for example, the board can take that quite personally as the rest of the unit owners in the small association are having to pick up the shortfall through higher regular assessments or perhaps even a special assessment,” says Palacio.

Other issues can also spark contentious relationships between boards and residents. “Sometimes the conflicts relate to whether the board is ‘over-maintaining’ the building, meaning spending too much money on, for example, patching and painting on an ongoing basis, and sometimes it’s the exact opposite, with a resident perhaps complaining that not enough upkeep is taking place,” says Palacio.

Arbitration vs. Mediation

When a problem arises and solutions seem scarce, the solution often falls to litigation – a very expensive first step. Mediation and arbitration are suitable alternatives, and cheaper too. Although they are both categorized as alternative dispute resolution, they are very different.

Mediation is non-binding and people involved or merely affiliated with the case can consult with the mediator. According to Jeffrey T. Zaino, Esq., vice president of the American Arbitration Association in New York., “arbitrations are binding and decisions of arbitrators are difficult to vacate. There is a very high legal standard for vacatur,” which is an order of the court vacating a legal proceeding.”

For residents of a homeowners association, mediation is most often the first step before any move toward litigation is permissible, says attorney Jay Steven Levine, the founder and shareholder of Levine Law Group, which has offices in Boca Raton, Palm Beach Gardens and Melbourne. “For condos, mediation is not required for court, but under the condo statute you have to go to arbitration, which is binding but not final in the sense that you can appeal to court. They have 30 days to file a lawsuit disagreeing with the arbitrator’s decision and then it’s like a brand new case. If they don’t appeal, it’s an enforceable order, and if they don’t comply, then they go to court to enforce it. Arbitrators can’t enforce their orders, only a court can.”

For condominiums, alternative dispute resolution is addressed in Florida statute 718.1255, which encourages voluntary mediation, says Palacio. “The Division of Florida Condominiums, Timeshares, and Mobile Homes of the Department of Business & Professional Regulation responds to and oversees petitions for arbitration,” he says. “Not all disputes are subject to arbitration, for example, such as the non-payment of assessments or the proper ownership of a unit.”

Mediation and arbitration can get to the heart of the matter quickly, efficiently and effectively, helping resolve disagreements in ways that can satisfy all parties involved and rectify situations that could escalate quickly.

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