2021 Legislative Changes
The Florida Legislature in its 2021 session specifically recognized the value offered by mediation and in several areas dealing with condominiums, HOA’s and other entities changed the laws that previously required pre-suit Arbitration to now require either pre-suit Mediation or Arbitration.
Both the Condominium and HOA statutory chapters specifically state:
“The legislature finds that alternative dispute resolution has made progress in reducing court dockets and trials and in offering a more efficient, cost-effective option to litigation.” FS §720.311 (1). See also, 718.112 (3)(b).
The previous law required arbitration before suit could be filed in regard to many issues between unit owners and their associations. The 2021 legislative session made that requirement one of either mediation or arbitration. That change probably resulted from the fact that the arbitration often added at least another year to any resolution of the dispute, because it was non-binding and usually required that a de novo lawsuit be filed. Mediation offers a faster opportunity to reach resolution, or an impasse, which, if necessary, enables a more reasonable timeline to a final resolution through litigation.
The Florida Statutes include the following Chapters: 718 Condominiums, 719 Cooperatives, 720 Homeowner’s Associations (HOA), 721 Vacation Rentals and Timeshares and 723 Mobile Home Parks. Each Chapter is unique in some ways and parallel or the same in other ways. A division of the Department of Business and Professional Regulation (DPR) oversees each of these organizations.
§718.112 contains various provisions which are required to be in any by-laws adopted by any condominium association. If these required provisions are not included in the by-laws, they are interpreted to be there, when litigated. When this statute required non-binding arbitration before any suit could be filed, courts either dismissed or held the suit in abeyance until this was accomplished. The new provisions require ‘Alternative Dispute Resolution (ADR)’ instead of ‘mandatory nonbinding arbitration’. See §718.1255. ‘Dispute’ is defined to exclude disputes involving: ‘title; any warranty; the levy or collection of a fee or assessment; removal of a tenant; alleged violation of a fiduciary duty by a director; or damage claims based on an association’s maintenance duties.’ And subsection (5) excludes election and recall disputes. The DBPR division both employs attorneys as arbitrators and maintains a list of private, certified mediators and arbitrators. Changes in §718.1255 (4)(a), (5) and (7), plus §720.311, are the means through which mediation was inserted as another way to fulfill the ADR pre-suit requirement. A form for requesting mediation and another for agreeing to mediate are included in the statute, with a preface stating, “An aggrieved party shall serve on the responding party a written demand to participate in presuit mediation in substantially the following form:”
The other chapters dealing with Cooperatives, Vacation Rentals and Mobile Homes are different. FS §719.1255 incorporates the provisions dealing with Condominiums into the chapter on Cooperatives. Chapter 721 acknowledges rights to sue, but makes no mention of ADR remedies, FS §723.038 states that parties to Mobile Home Park disputes may request mediation through that divisions procedures.
The message from Tallahassee is clear: Mediate, only litigate as a last resort.