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East Pasco HOA loses suit, can’t charge for legal fees

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DADE CITY — The East Pasco neighborhood at the center of a costly dispute over wheelchair access to its homeowners association meetings has no legal authority to assess homeowners for its mounting legal bills, a County judge has ruled.

Judge William Sestak agreed with three Bayhead Landings homeowners that the association board failed to follow its own procedures for extending the neighborhood deed restrictions in 2010. He issued a court order Monday ruling that the deed restrictions and covenants expired three years ago.

“When you don’t have deed restrictions, the association becomes voluntary,” said Barbara Stage, the attorney who represented homeowners in their lawsuit against the Bayhead Landings Property Owners Association. “They’re trying to get another special assessment passed, but they can’t because they have no legal authority.”

The recent case stemmed from a lawsuit filed by homeowners John and Kim Whitt, who sued the association for holding its meetings on an unfinished lakefront lot that is not wheelchair accessible. They accused the association of violating the Fair Housing Act and the section of Florida law that requires homeowner association meetings to be open to all members.

They won an emergency injunction that forced the association to meet for a year in wheelchair-accessible locations. But the case was reassigned to another judge, who dismissed the Whitts’ claim. Judge Linda Babb ruled that “there is no legal basis to support the plaintiffs’ contention that the open meeting provision of (the law) requires wheelchair accessibility” since private community associations are not subject to the federal Americans With Disability Act.

Babb also ordered the Whitts to pay the association $20,000 in legal fees for the case, but the board still assessed homeowners thousands of dollars each for unpaid legal bills.

Dan DiCiollo, a former board member, said he never understood why the three people running the association were so determined to fight the Whitts in court.

“It was a board decision,” he said. “The members never had a vote. It became somewhat vindictive — there was a lynch mob mentality in the community.”

The association’s legal bills reached “upwards of $70,000,” according to a letter signed by all three board members. The board passed a special assessment, charging property owners thousands of dollars to pay the legal bills.

DiCiollo said he paid the first two assessments, but when the board passed a third special assessment, he asked for documentation of the expenses. “We can’t get our hands on these billings,” he said. “Every time I ask to see them, the board members say it’s attorney-client privilege.”

That’s when he and two other homeowners sought to have the community association disbanded by the court.

In his final order, Sestak wrote that he could find “no genuine issues to any material fact” that Bayhead Landings used an improper method to extend its deed restrictions, as alleged, before they were set to expire on Jan. 1, 2011. “Thus the deed restrictions were not properly extended and have expired.”

The association attorney could not be reached for comment.

Jan Bergemann, an activist who fights abuses by homeowner associations, said the Sestak ruling should invalidate Babb’s order requiring the Whitts to pay legal fees, since the association had ceased to exist before the Whitts’ case went to court.

Meanwhile, state Sen. Wilton Simpson has introduced Senate Bill 1450, which would require private homeowners associations to meet in locations “that are accessible to physically handicapped persons.” The bill passed the Senate Community Affairs Committee, which Simpson runs, on Tuesday.

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