Q: What is “ADR?” Our condominium association is currently involved in a legal dispute and has been told we “have to go through ADR” before we can go to court.” (J.D., via e-mail)
A: “ADR” is an acronym used for alternative dispute resolution. The two prevailing forms of ADR are arbitration and mediation.
In arbitration, an “arbitrator” is appointed to hear the case much like a judge would. Arbitrators are not judges; they are usually retired judges, private attorneys, or government employees. Arbitration is much like a court trial in that there is a winner and loser, although the steps before arbitration are usually much less complex than in court proceedings, including limited “discovery,” such as depositions. Arbitration can either be binding on the parties (usually agreed to by the parties in a contract) or non-binding.
In mediation, the “mediator” does not act like a judge but as more of a facilitator who tries to see if he or she can bring the parties together to settle the dispute. There is no winner or loser, either the parties mutually agree to a settlement, or the mediator declares an “impasse.”
In 1991, the Florida Condominium Act was amended to require that before any “dispute” could be brought to court, the parties had to participate in non-binding arbitration administered through the Florida Department of Business and Professional Regulation. If either party was not satisfied with the ruling in the arbitration, either party could file a lawsuit in court and get a “trial de novo,” meaning that the case would be heard in the courts without regard to who won or lost the arbitration.
In 2021, the statute was amended to allow a party seeking redress to also offer mediation to resolve the dispute as an acceptable form of ADR. If a dispute is not settled by mutual agreement through mediation, either party has the right to proceed with a lawsuit in court.
For the purposes of the condominium laws, the term “dispute” means any disagreement between two or more parties concerning the board’s authority to require an owner to take (or refrain from taking) action related to their unit or limited common elements and disagreements regarding the alteration of or addition to common elements. The term also includes issues related to the association’s management of elections, meeting notices, meeting conduct, and access to books and records.
The term “dispute” does not cover issues related to the title of any unit or common elements, warranty interpretation or enforcement, the levy or collection of fees or assessments, eviction or removal from a unit, breaches of fiduciary duty by directors, or claims for damages to a unit due to the association’s failure to maintain common elements or condominium property. These matters must be adjudicated directly in court.
Q: My homeowners’ association requires readable bar code labels for resident access through all gates in the community. The main gate has a code box that visitors use to gain entry. Residents without RFID stickers must use the visitor line. The main gate is 2 miles from my house, while the back entrance is only a couple hundred yards away. My son cannot get a label. Is there a legal way to get him a label for easier access through the closer entrance? (A.L., via e-mail)
A: The Board of Directors is typically granted the authority to regulate the details of access control in gated communities. It does have the duty to treat all owners equally.
If your son resides in the community as part of your family, I see no reason why he should not be entitled to the label in the same manner as any other resident. Conversely, if your son resides elsewhere, I see no reason why he would be entitled to an exception to the association’s access control policy.
Joe Adams is an attorney with Becker & Poliakoff, P.A., Fort Myers. Send questions to Joe Adams by e-mail to jadams@beckerlawyers.com. Past editions may be viewed at floridacondohoalawblog.com.