Arbitration - A Primer
.jpg)
There are times when a person’s “day in court” is not immediately available in the condominium setting in light of the arbitration provision in the Condominium Act [§718.1255]. This post is one of three which will be address different aspects of arbitration (1) general information; (2) binding nature and enforcement; and (3) time sensitive disputes.
In General
In the condominium setting, parties must go through arbitration before a case can be filed in court when the disagreement (i.e., dispute) concerns the Board’s authority (i) to require any owner to take/not take a specific action regarding the unit or its appurtenances or (ii) to alter/add to the common areas/elements; or the failure of the Board to (i) conduct elections and meetings properly; (ii) adequately notice meetings; or (iii) allow inspection of records.
Before filing an arbitration petition, one must review both the governing documents and the Condominium Act to ensure all conditions precedent to the filing of the petition have been met. For example, §718.1255(4)(b) requires the petitioner (plaintiff) to provide the respondent (defendant) with notice of the dispute. This notice must specifically state the nature of the dispute, advise what it would take to resolve the dispute, provide a reasonable time for the resolution to occur, and advise of the consequences for failure to resolve the issue. There is no hard and fast rule as to what time frame is deemed reasonable but common sense would dictate the deadline should take in to consideration the nature of the remedy sought and the nature of prior notices (verbal or written) to the violator. A statement that arbitration or other legal action will be pursued serves as information regarding the consequences for failing to remedy the violation (there is no requirement you disclose legal strategy or the “smoking gun”). The notice should also include a statement that legal fees and costs will be sought as part of the action, to further place the violator on notice of the repercussions of continued non-compliance.
The petition itself should follow the format put forth by the Division in Form ARB 6000-001 and must assert an entitlement to legal fees and costs and the basis for that entitlement. The petition must be accompanied by a filing fee at that time it is filed with the Division. On receipt of the petition, the Division will first determine if it has jurisdiction to hear the case. This means nothing more than the Division will determine if a dispute exists as defined by the statute. If one does exist, the Division would then require a response from the respondent. The arbitration then proceeds with discovery if merited, motions and/or a final hearing. FYI, discovery if permitted by the arbitrator can be conducted in the manner set forth by the Florida Rules of Civil Procedure and the arbitrator can also issue subpoenas requiring witnesses to appear and the production of documents. The Florida Administrative Code [61-B45] also provides guidelines for handling discovery and other arbitration processes.
Once the case is ready, the parties can seek to resolve the case via motions (similar to motions for summary judgment) and/or through a final hearing (similar to a trial before a judge). At the conclusion of the proceeding, the arbitrator’s decision must be in writing.
