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Filing # 66513208 E-Filed 01/12/2018 05:22:41 PM
IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT
IN AND FOR MONROE COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
GALWAY BAY MOBILE HOMEOWNERS ASE NO.: 2017-CA-000166 MR
ASSOCIATION, INC.,
Plaintiff,
vs.
BIZA, CORP, d/b/a GALWAY BAY MOBILE
HOME PARK,
Defendant.
____________________________________/
DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS
MOTION TO CERTIFY CLASS
COMES NOW, Defendant BIZA, CORP. d/b/a GALWAY BAY MOBILE HOME
PARK (hereinafter “Park”), by and through its undersigned attorneys, and files its
Memorandum of Law in Support of its Motion to Certify Class.
The Plaintiff Galway Bay Mobile Homeowners Association, Inc. (hereafter HOA)
brought this action on a Complaint for Damages, Declaratory and Injunctive Relief pursuant
to Florida Rule of Civil Procedure 1.222 on behalf of all mobile home owners leasing lots
in Galway Bay Mobile Home Park. The landlord/tenant relationship between a mobile home
park owner and mobile home owners leasing sites in a mobile home park is highly
regulated by Chapter 723. The Legislature has expressly preempted to the state regulation
in this area. §723.004, Fla. Stat.
A mobile homeowners’ association is a statutorily created entity. §723.075-
§723.079, Fla. Stat. The statute creates powers of the association. The statute recognizes
the right of a homeowners’ association to act on behalf of mobile home owners and places
certain restrictions on the association. To qualify as a bona fide mobile homeowners’
association, two-thirds of the owners of homes sited in a mobile home park must consent
to its formation and to be bound by its articles of incorporation, bylaws and policies. The
association may not have a member who is not a “bona fide owner of a mobile home
located in the park.” §723.075(1), Fla. Stat. The association is not a mandatory one; there
is no requirement that a specific number or percentage of home owners continue to be
members.
Section 723.037 details a procedure that must be followed by a park owner in order
to increase the lot rent, reduce services or utilities, or change the rules and regulations.
It includes an informal dispute resolution process during which a “homeowners’ committee”
may be designated by a majority of the affected home owners or by the board of directors
of the mobile homeowners’ association to meet with the park owner to address disputed
matters. The “homeowners’ committee” may represent the home owners and enter into
binding agreements with the park owner. §§723.003(5), 723.037(4), Fla. Stat.
If a resolution of matters raised during meetings between the committee and the
park owner is not obtained, mediation may be requested under the auspices of the state
agency administering the statute. §723.037(5), Fla. Stat. To do so, a majority of the
affected homeowners must designate in writing that certain conditions are challenged.
§723.037(5)(a), Fla Stat. The agency uses a standard form that provides authorization
from the home owners allowing member of the homeowners’ committee to represent them
at mediation.
If a dispute remains between the home owners and the park owner, a party may
proceed to raise their claims in a civil action or elect arbitration. §723.0381, Fla. Stat. To
initiate litigation as a representative of the home owners, the association must have the
2
written consent of a majority of the affected home owners. §723.037(1), Fla. Stat. The
Legislature provided a means by which an association could access the court, but this
section was found to be unconstitutional as was a similar section in Chapter 718
concerning condominium associations. The Supreme Court remedied the situation by the
adoption of Florida Rule of Civil Procedures 1.221 (condominium associations) and soon
thereafter by adopting Rule 1.222 (mobile homeowners’ associations).
Rule 1.222, Florida Rules of Civil Procedure, was adopted by the Florida Supreme
Court in 1988 to address the special circumstances of those persons who were mobile
home owners residing in a mobile home park who came together to form a mobile
homeowners’ association to act collectively for them. Lanca Homeowners, Inc. v. Lantana
Cascade of Palm Beach, Ltd., 541 So. 2d 1121 (Fla. 1988), cert. denied, 493 U.S. 964,
110 S.Ct. 405, 107 L.Ed.2d 371 (1989). Rule 1.222 states in pertinent part:
A mobile homeowners’ association may institute, maintain, settle, or appeal
actions or hearings in its name on behalf of all homeowners concerning
matters of common interest, including, but not limited to: the common
property; structural components of a building or other improvements;
mechanical, electrical, and plumbing elements servicing the park property;
and protests of ad valorem taxes on commonly used facilities. ... Nothing
herein limits any statutory or common-law right of any individual homeowner
or class of homeowners to bring any action which may otherwise be
available. An action under this rule shall not be subject to the requirements
of rule 1.220.
Fla. R. Civ. P. 1.222.
Rule 1.222 allows a voluntary mobile homeowners’ association formed pursuant to
sections 723.075 et seq. to act as the class representative of mobile home owners leasing
lots in a mobile home park when addressing matters of common interest and when
authorized to do so. These questions must be addressed to establish the HOA’s standing
to act as the representative of the putative class members.
3
If this court has determined the HOA has standing to proceed as the representative
of the putative class members, the class must be certified and properly identified. The
notice to be given to the putative class members must also be addressed.
The Class
The HOA states it brought this action “on behalf of all mobile homeowners at
Galway Bay Mobile Home Park, concerning matters of common interest and pursuant to
Chapter 723 of the Florida Statutes, which governs mobile home park lot tenancies.”
Complaint ¶3. Galway Bay Mobile Home Park has 60 mobile home sites and 85
recreational vehicle sites. Complaint, Ex. A, pp.1,19. Some residents occupying RV-
permitted sites have asserted in various forums that they are mobile home owners as
evidenced by court pleadings filed in Monroe County Court cases. See Defendant’s First
Request for Judicial Notice. The identity of the mobile home owners the HOA is qualified
to represent must be clarified.
The Complaint challenges the lot rental amount established effective April 1, 2017.
Section 723.059(4), Florida Statutes, allows a mobile home park owner to increase the
rental amount to be paid by the home purchaser upon the expiration of the assumed rental
agreement in an amount deemed appropriate by the owner so long as it is consistent with
the terms and conditions of the prospectus. Increases in rent consistent with section
723.059(4) are not unreasonable and are statutorily justified. See Magnolia Village
Homeowners Ass’n v. Magnolia Village, Inc., 758 So. 2d 1201 (Fla. 5th DCA 2000). Those
who purchased homes located in the Community after the challenged rent increase notice
was delivered should not be included in a class with those who received the rent notice.
4
All mobile home owners may not be affected in the same way by the relief requested
involving refunds and future credits. Mobile home park residency is fluid. Home owners
may sell their homes for any number of reasons. New owners accept the lot rental amount
prior to purchase. Prospective home owners are not in the same position as existing
residents because their choice is freely made and not hampered by ownership of a home
placed on a lot in the Park. Home owners who leased a site after the disputed lot rental
increase voluntarily agreed to pay the new amount. They were fully informed when they
made their decision to move into the Community and were not faced with the “absence of
a meaningful choice” in the way those who residing in the Community prior to the rent
increase were. They leased mobile home sites in Galway Bay with full knowledge of the
lot rental amount and services provided that are challenged in this litigation.
Section 723.059(4), Florida Statutes, allows a mobile home park owner to increase
the rental amount to be paid by the home purchaser upon the expiration of the assumed
rental agreement in an amount deemed appropriate by the owner so long as it is consistent
with the terms and conditions of the prospectus. Increases in rent consistent with section
723.059(4) are not unreasonable and are statutorily justified. See Magnolia Village
Homeowners Ass’n v. Magnolia Village, Inc., 758 So. 2d 1201 (Fla. 5th DCA 2000). Those
who purchased homes located in the Community after the challenged rent increase notice
was delivered should not be included in a class with those who received the rent notice.
Class Notice
The individual mobile home owners in Galway Bay Mobile Home Park should be
given notice they are being represented by the Plaintiff in this case, the claims being made
by the Plaintiff, and given an opportunity to “opt out” of the class and the litigation. Notice
5
is necessary to ensure the due process rights of individual mobile home owners are not
violated because not all home owners are members of the Association and not all home
owners have consented to this litigation. Some home owners may not even be aware of
these proceedings. See, Amber Glades, Inc. v. Leisure Assocs. LP, 893 So. 2d 620 (Fla.
2d DCA 2005) (finding notice to class members in an action brought pursuant to Rule
1.222 to be an “excellent idea, if not a step essential to achieve minimum requirements of
due process”).
It is well-established under the general class action rule, Rule 1.220, that procedural
due process requires that individual notice be given to those potential class members who
can be identified through reasonable effort. This allows members of the class to choose
to be or not to be members of the class and thus bound by any judgment. National Lake
Developments v. Lake Tippecanoe, 417 So. 2d 655, 657 (Fla. 1982).
Courts addressing mobile homeowners’ association and condominium association
class actions, Rules 1.222 and 1.221 respectively, have found that providing notice to class
members and an opportunity to opt-out protects the due process rights of individual owners
and is not contrary to the rules of civil procedure. See e.g., Amber Glades, 893 So. 2d 620;
Brazilian Court Hotel Condominium Owners Ass’n, Inc. v. Walker, 584 So. 2d 609, 612
(Fla. 4th DCA 1991). The constitutional rights of individual litigants is protected by allowing
individual condominium unit owners to bring their own claims and to be represented by
counsel of their own choosing. Id. This is exactly what Defendant is asserting the
Association needs to do in this case.
Providing an opt-out opportunity to mobile home owners who are putative class
members in a Rule 1.222 action avoids forcing litigation upon unwilling class members.
6
Home owners should have the right to have an attorney of their choice and an option to be
dismissed from the action and not bound by its result. Failure to require notice deprives
defendants from recovering a potential judgment for costs. The court in Amber Glades
considered these matters and concluded notice was necessary to address due process
concerns. Amber Glades, 893 So. 2d at 627.
The claims made by the HOA address the lot rental amount paid under the
individual home site leases and the provision of services in connection with the individual
tenancies. The individual home owners are the real parties in interest. Hollywood Mobile
Estates Limited v. Hollywood Independent Tenants Ass’n, Inc., 67 So. 3d 1194, 1196 (Fla.
4th DCA 2011); Yacht Club Southeastern, Inc. v. Sunset Harbour N. Condo. Ass’n, Inc., 843
So. 2d 917, 919 (Fla. 3d DCA 2003). They should be given notice of the pendency of the
lawsuit and an opportunity to “opt out” of the litigation. This is especially true given the
voluntary nature of membership in mobile home park homeowners’ associations.
Once a mobile homeowners’ association is properly incorporated, membership is
by consent of each dues paying individual home owner. §723.075(1), Fla. Stat. Once
incorporated, there are no representative quotas a mobile homeowners’ association must
meet to continue its existence. A mobile homeowners’ association may not even consist
of a majority of the community residents. Nonmembers may have no knowledge of the
litigation because they do not participate in the affairs of the association. Non-members
certainly cannot vote and have no choice in whether to initiate litigation. This fact alone
indicates a strong public policy reason for formal notice to mobile home owner members
of the class in an action brought pursuant to Rule 1.222.
7
In this action, Plaintiff claims the mobile home park owner has failed to maintain the
community and alleges problems with drainage and flooding. Assuming for purposes of
illustration only that this is true, perhaps such problems were limited in location and one
or more home owners in the area suffered flooding of their home. If so, these owners
would have very different damages than the class members and may wish to assert their
claims individually. Without notice of the class action and an opportunity to opt-out, these
individual claims would be forever barred. See, Amber Glades, 893 So. 2d at 627
(affirming order requiring a mobile homeowners’ association to give notice to class
members with an opt-out opportunity in Rule 1.222 action).
Identification of the class members addresses another concern–who is bound by
a judgment. If class members are not identified, the question of who is bound by a
judgment in a class action might remain open. Assume the lot rental amount was found
to be reasonable. Would all home owners living in the Park be bound by the judgment?
Could individual home owners then bring individual claims against the defendant that again
challenged the lot rental amount for whatever reason the individual put forth? Notice,
resulting in identifying the class members, allows for certainty when a judgment is issued.
It is the individual mobile home owners who have entered into a lot rental agreement
with the community owner and who pay rent. The Association does not pay rent, does not
own homes, and has no contractual relationship with the Defendants. Identifying the class
members will allow the class members to benefit from the judgment. Only the individuals
can reap the benefits of a favorable judgment. Likewise, they must also be available to
pay a judgment in favor of the Defendants.
8
To allow otherwise would open the door to mobile homeowners’ associations to
bring actions without any responsibility for the results and to behave in a financially
irresponsible way. See dicta in Amber Glades, 823 So. 2d at 623; Gulf Oil Realty, 403 So.
2d at 477. A mobile homeowners’ association will often have few or no assets. This is
particularly true for a mobile home owners’ association, which, unlike a condominium
association, owns no property and is comprised of voluntary members. Because
membership in voluntary, the association may not be representative of the majority of the
home owners in the community.
Conclusion
Due process requires that notice and an opt-out opportunity be given to each mobile
home owner who is a member of the class. In addition, fairness and equity require that the
class members be available to satisfy any judgment for Defendant. Likewise, identification
of class members resolves who benefits from any favorable judgments and protects the
Defendant from individual lawsuits by unnamed class members.
Defendant Biza Corp. d/b/a Galway Bay Mobile Home Park respectfully requests
this Court to determine what claims, if any, may go forward as a class action and to use
its discretion to efficiently manage the case while preserving the rights of the individual
class members to require notice of this class action be given to all mobile home owners
leasing mobile home sites in Galway Bay Mobile Home Park on December 16, 2016 who
are subject to the April 1, 2017 rent increase. For the reasons noted above, such notice
9
should include information concerning the potential liability for attorney’s fees pursuant to
section 723.068, Florida Statutes, and an opportunity to opt-out of the class.
Respectfully submitted, this 12th day of January, 2018
/s/ Carol S. Grondzik
CAROL S. GRONDZIK (FBN 0156833)
csgrondzik@floridahousinglaw.com
DAVID D. EASTMAN (FBN 454559)
eastman@floridahousinglaw.com
gayledcason@floridahousinglaw.com
Lutz, Bobo & Telfair, P.A.
2155 Delta Blvd. Suite 210-B
Tallahassee, FL 32303
(850) 521-0890 telephone
(850) 521-0891 facsimile
Attorneys for Defendant
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been
furnished electronically via the Florida e-filing portal to Nejla Calvo, Esq., and Jeffrey M.
Hearne, Esq., Attorneys for Plaintiff, LEGAL SERVICES OF GREATER MIAMI, INC., 4343
West Flagler Street, Suite 100, Miami, FL 33137 (ncalvo@legalservicesmiami.org;
j h e a r n e @ l e galse rvice sm ia m i. o rg; cro d rigu e z@ le g a l s e r vi c e s m i a m i . o r g ;
pleadings@legalservicesmiami.org, and Scott L. Baena, Esq., and Jennifer Junger,
Esq., Attorneys for Plaintiff, Bilzin Sumberg Baena Price & Axelrod, LLP, 1450 Brickell
Ave., Ste. 2300, Miami, FL 33131-3456 (sbaena@bilzin.com; jjunger@bilzin.com;
stapanes@bilzin.com; eservice@bilzin.com) this 12th day of day of January, 2018.
/s/ Carol S. Grondzik
Attorney
10
Preview
Filing # 66513208 E-Filed 01/12/2018 05:22:41 PM IN THE CIRCUIT COURT OF THE 16TH JUDICIAL CIRCUIT IN AND FOR MONROE COUNTY, FLORIDA GENERAL JURISDICTION DIVISION GALWAY BAY MOBILE HOMEOWNERS ASE NO.: 2017-CA-000166 MR ASSOCIATION, INC., Plaintiff, vs. BIZA, CORP, d/b/a GALWAY BAY MOBILE HOME PARK, Defendant. ____________________________________/ DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO CERTIFY CLASS COMES NOW, Defendant BIZA, CORP. d/b/a GALWAY BAY MOBILE HOME PARK (hereinafter “Park”), by and through its undersigned attorneys, and files its Memorandum of Law in Support of its Motion to Certify Class. The Plaintiff Galway Bay Mobile Homeowners Association, Inc. (hereafter HOA) brought this action on a Complaint for Damages, Declaratory and Injunctive Relief pursuant to Florida Rule of Civil Procedure 1.222 on behalf of all mobile home owners leasing lots in Galway Bay Mobile Home Park. The landlord/tenant relationship between a mobile home park owner and mobile home owners leasing sites in a mobile home park is highly regulated by Chapter 723. The Legislature has expressly preempted to the state regulation in this area. §723.004, Fla. Stat. A mobile homeowners’ association is a statutorily created entity. §723.075- §723.079, Fla. Stat. The statute creates powers of the association. The statute recognizes the right of a homeowners’ association to act on behalf of mobile home owners and places certain restrictions on the association. To qualify as a bona fide mobile homeowners’ association, two-thirds of the owners of homes sited in a mobile home park must consent to its formation and to be bound by its articles of incorporation, bylaws and policies. The association may not have a member who is not a “bona fide owner of a mobile home located in the park.” §723.075(1), Fla. Stat. The association is not a mandatory one; there is no requirement that a specific number or percentage of home owners continue to be members. Section 723.037 details a procedure that must be followed by a park owner in order to increase the lot rent, reduce services or utilities, or change the rules and regulations. It includes an informal dispute resolution process during which a “homeowners’ committee” may be designated by a majority of the affected home owners or by the board of directors of the mobile homeowners’ association to meet with the park owner to address disputed matters. The “homeowners’ committee” may represent the home owners and enter into binding agreements with the park owner. §§723.003(5), 723.037(4), Fla. Stat. If a resolution of matters raised during meetings between the committee and the park owner is not obtained, mediation may be requested under the auspices of the state agency administering the statute. §723.037(5), Fla. Stat. To do so, a majority of the affected homeowners must designate in writing that certain conditions are challenged. §723.037(5)(a), Fla Stat. The agency uses a standard form that provides authorization from the home owners allowing member of the homeowners’ committee to represent them at mediation. If a dispute remains between the home owners and the park owner, a party may proceed to raise their claims in a civil action or elect arbitration. §723.0381, Fla. Stat. To initiate litigation as a representative of the home owners, the association must have the 2 written consent of a majority of the affected home owners. §723.037(1), Fla. Stat. The Legislature provided a means by which an association could access the court, but this section was found to be unconstitutional as was a similar section in Chapter 718 concerning condominium associations. The Supreme Court remedied the situation by the adoption of Florida Rule of Civil Procedures 1.221 (condominium associations) and soon thereafter by adopting Rule 1.222 (mobile homeowners’ associations). Rule 1.222, Florida Rules of Civil Procedure, was adopted by the Florida Supreme Court in 1988 to address the special circumstances of those persons who were mobile home owners residing in a mobile home park who came together to form a mobile homeowners’ association to act collectively for them. Lanca Homeowners, Inc. v. Lantana Cascade of Palm Beach, Ltd., 541 So. 2d 1121 (Fla. 1988), cert. denied, 493 U.S. 964, 110 S.Ct. 405, 107 L.Ed.2d 371 (1989). Rule 1.222 states in pertinent part: A mobile homeowners’ association may institute, maintain, settle, or appeal actions or hearings in its name on behalf of all homeowners concerning matters of common interest, including, but not limited to: the common property; structural components of a building or other improvements; mechanical, electrical, and plumbing elements servicing the park property; and protests of ad valorem taxes on commonly used facilities. ... Nothing herein limits any statutory or common-law right of any individual homeowner or class of homeowners to bring any action which may otherwise be available. An action under this rule shall not be subject to the requirements of rule 1.220. Fla. R. Civ. P. 1.222. Rule 1.222 allows a voluntary mobile homeowners’ association formed pursuant to sections 723.075 et seq. to act as the class representative of mobile home owners leasing lots in a mobile home park when addressing matters of common interest and when authorized to do so. These questions must be addressed to establish the HOA’s standing to act as the representative of the putative class members. 3 If this court has determined the HOA has standing to proceed as the representative of the putative class members, the class must be certified and properly identified. The notice to be given to the putative class members must also be addressed. The Class The HOA states it brought this action “on behalf of all mobile homeowners at Galway Bay Mobile Home Park, concerning matters of common interest and pursuant to Chapter 723 of the Florida Statutes, which governs mobile home park lot tenancies.” Complaint ¶3. Galway Bay Mobile Home Park has 60 mobile home sites and 85 recreational vehicle sites. Complaint, Ex. A, pp.1,19. Some residents occupying RV- permitted sites have asserted in various forums that they are mobile home owners as evidenced by court pleadings filed in Monroe County Court cases. See Defendant’s First Request for Judicial Notice. The identity of the mobile home owners the HOA is qualified to represent must be clarified. The Complaint challenges the lot rental amount established effective April 1, 2017. Section 723.059(4), Florida Statutes, allows a mobile home park owner to increase the rental amount to be paid by the home purchaser upon the expiration of the assumed rental agreement in an amount deemed appropriate by the owner so long as it is consistent with the terms and conditions of the prospectus. Increases in rent consistent with section 723.059(4) are not unreasonable and are statutorily justified. See Magnolia Village Homeowners Ass’n v. Magnolia Village, Inc., 758 So. 2d 1201 (Fla. 5th DCA 2000). Those who purchased homes located in the Community after the challenged rent increase notice was delivered should not be included in a class with those who received the rent notice. 4 All mobile home owners may not be affected in the same way by the relief requested involving refunds and future credits. Mobile home park residency is fluid. Home owners may sell their homes for any number of reasons. New owners accept the lot rental amount prior to purchase. Prospective home owners are not in the same position as existing residents because their choice is freely made and not hampered by ownership of a home placed on a lot in the Park. Home owners who leased a site after the disputed lot rental increase voluntarily agreed to pay the new amount. They were fully informed when they made their decision to move into the Community and were not faced with the “absence of a meaningful choice” in the way those who residing in the Community prior to the rent increase were. They leased mobile home sites in Galway Bay with full knowledge of the lot rental amount and services provided that are challenged in this litigation. Section 723.059(4), Florida Statutes, allows a mobile home park owner to increase the rental amount to be paid by the home purchaser upon the expiration of the assumed rental agreement in an amount deemed appropriate by the owner so long as it is consistent with the terms and conditions of the prospectus. Increases in rent consistent with section 723.059(4) are not unreasonable and are statutorily justified. See Magnolia Village Homeowners Ass’n v. Magnolia Village, Inc., 758 So. 2d 1201 (Fla. 5th DCA 2000). Those who purchased homes located in the Community after the challenged rent increase notice was delivered should not be included in a class with those who received the rent notice. Class Notice The individual mobile home owners in Galway Bay Mobile Home Park should be given notice they are being represented by the Plaintiff in this case, the claims being made by the Plaintiff, and given an opportunity to “opt out” of the class and the litigation. Notice 5 is necessary to ensure the due process rights of individual mobile home owners are not violated because not all home owners are members of the Association and not all home owners have consented to this litigation. Some home owners may not even be aware of these proceedings. See, Amber Glades, Inc. v. Leisure Assocs. LP, 893 So. 2d 620 (Fla. 2d DCA 2005) (finding notice to class members in an action brought pursuant to Rule 1.222 to be an “excellent idea, if not a step essential to achieve minimum requirements of due process”). It is well-established under the general class action rule, Rule 1.220, that procedural due process requires that individual notice be given to those potential class members who can be identified through reasonable effort. This allows members of the class to choose to be or not to be members of the class and thus bound by any judgment. National Lake Developments v. Lake Tippecanoe, 417 So. 2d 655, 657 (Fla. 1982). Courts addressing mobile homeowners’ association and condominium association class actions, Rules 1.222 and 1.221 respectively, have found that providing notice to class members and an opportunity to opt-out protects the due process rights of individual owners and is not contrary to the rules of civil procedure. See e.g., Amber Glades, 893 So. 2d 620; Brazilian Court Hotel Condominium Owners Ass’n, Inc. v. Walker, 584 So. 2d 609, 612 (Fla. 4th DCA 1991). The constitutional rights of individual litigants is protected by allowing individual condominium unit owners to bring their own claims and to be represented by counsel of their own choosing. Id. This is exactly what Defendant is asserting the Association needs to do in this case. Providing an opt-out opportunity to mobile home owners who are putative class members in a Rule 1.222 action avoids forcing litigation upon unwilling class members. 6 Home owners should have the right to have an attorney of their choice and an option to be dismissed from the action and not bound by its result. Failure to require notice deprives defendants from recovering a potential judgment for costs. The court in Amber Glades considered these matters and concluded notice was necessary to address due process concerns. Amber Glades, 893 So. 2d at 627. The claims made by the HOA address the lot rental amount paid under the individual home site leases and the provision of services in connection with the individual tenancies. The individual home owners are the real parties in interest. Hollywood Mobile Estates Limited v. Hollywood Independent Tenants Ass’n, Inc., 67 So. 3d 1194, 1196 (Fla. 4th DCA 2011); Yacht Club Southeastern, Inc. v. Sunset Harbour N. Condo. Ass’n, Inc., 843 So. 2d 917, 919 (Fla. 3d DCA 2003). They should be given notice of the pendency of the lawsuit and an opportunity to “opt out” of the litigation. This is especially true given the voluntary nature of membership in mobile home park homeowners’ associations. Once a mobile homeowners’ association is properly incorporated, membership is by consent of each dues paying individual home owner. §723.075(1), Fla. Stat. Once incorporated, there are no representative quotas a mobile homeowners’ association must meet to continue its existence. A mobile homeowners’ association may not even consist of a majority of the community residents. Nonmembers may have no knowledge of the litigation because they do not participate in the affairs of the association. Non-members certainly cannot vote and have no choice in whether to initiate litigation. This fact alone indicates a strong public policy reason for formal notice to mobile home owner members of the class in an action brought pursuant to Rule 1.222. 7 In this action, Plaintiff claims the mobile home park owner has failed to maintain the community and alleges problems with drainage and flooding. Assuming for purposes of illustration only that this is true, perhaps such problems were limited in location and one or more home owners in the area suffered flooding of their home. If so, these owners would have very different damages than the class members and may wish to assert their claims individually. Without notice of the class action and an opportunity to opt-out, these individual claims would be forever barred. See, Amber Glades, 893 So. 2d at 627 (affirming order requiring a mobile homeowners’ association to give notice to class members with an opt-out opportunity in Rule 1.222 action). Identification of the class members addresses another concern–who is bound by a judgment. If class members are not identified, the question of who is bound by a judgment in a class action might remain open. Assume the lot rental amount was found to be reasonable. Would all home owners living in the Park be bound by the judgment? Could individual home owners then bring individual claims against the defendant that again challenged the lot rental amount for whatever reason the individual put forth? Notice, resulting in identifying the class members, allows for certainty when a judgment is issued. It is the individual mobile home owners who have entered into a lot rental agreement with the community owner and who pay rent. The Association does not pay rent, does not own homes, and has no contractual relationship with the Defendants. Identifying the class members will allow the class members to benefit from the judgment. Only the individuals can reap the benefits of a favorable judgment. Likewise, they must also be available to pay a judgment in favor of the Defendants. 8 To allow otherwise would open the door to mobile homeowners’ associations to bring actions without any responsibility for the results and to behave in a financially irresponsible way. See dicta in Amber Glades, 823 So. 2d at 623; Gulf Oil Realty, 403 So. 2d at 477. A mobile homeowners’ association will often have few or no assets. This is particularly true for a mobile home owners’ association, which, unlike a condominium association, owns no property and is comprised of voluntary members. Because membership in voluntary, the association may not be representative of the majority of the home owners in the community. Conclusion Due process requires that notice and an opt-out opportunity be given to each mobile home owner who is a member of the class. In addition, fairness and equity require that the class members be available to satisfy any judgment for Defendant. Likewise, identification of class members resolves who benefits from any favorable judgments and protects the Defendant from individual lawsuits by unnamed class members. Defendant Biza Corp. d/b/a Galway Bay Mobile Home Park respectfully requests this Court to determine what claims, if any, may go forward as a class action and to use its discretion to efficiently manage the case while preserving the rights of the individual class members to require notice of this class action be given to all mobile home owners leasing mobile home sites in Galway Bay Mobile Home Park on December 16, 2016 who are subject to the April 1, 2017 rent increase. For the reasons noted above, such notice 9 should include information concerning the potential liability for attorney’s fees pursuant to section 723.068, Florida Statutes, and an opportunity to opt-out of the class. Respectfully submitted, this 12th day of January, 2018 /s/ Carol S. Grondzik CAROL S. GRONDZIK (FBN 0156833) csgrondzik@floridahousinglaw.com DAVID D. EASTMAN (FBN 454559) eastman@floridahousinglaw.com gayledcason@floridahousinglaw.com Lutz, Bobo & Telfair, P.A. 2155 Delta Blvd. Suite 210-B Tallahassee, FL 32303 (850) 521-0890 telephone (850) 521-0891 facsimile Attorneys for Defendant CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished electronically via the Florida e-filing portal to Nejla Calvo, Esq., and Jeffrey M. Hearne, Esq., Attorneys for Plaintiff, LEGAL SERVICES OF GREATER MIAMI, INC., 4343 West Flagler Street, Suite 100, Miami, FL 33137 (ncalvo@legalservicesmiami.org; j h e a r n e @ l e galse rvice sm ia m i. o rg; cro d rigu e z@ le g a l s e r vi c e s m i a m i . o r g ; pleadings@legalservicesmiami.org, and Scott L. Baena, Esq., and Jennifer Junger, Esq., Attorneys for Plaintiff, Bilzin Sumberg Baena Price & Axelrod, LLP, 1450 Brickell Ave., Ste. 2300, Miami, FL 33131-3456 (sbaena@bilzin.com; jjunger@bilzin.com; stapanes@bilzin.com; eservice@bilzin.com) this 12th day of day of January, 2018. /s/ Carol S. Grondzik Attorney 10