Saturday, May 23, 2015

Correct Mailing Address is Critical to Association Living!

Questions about past due assessments, collection fees and liens almost always include a statement the inquirer did not receive notice.  Not having your correct mailing address on file with the association puts the liability on you. Just like not signing for the certified letter is on you and the association will receive it back marked "UNCLAIMED."

If you are going to dispute any charges, here is my advice:

Pay off the lien first and then bring a separate action for recovery of any fees if the association violated your due process rights. Never risk the loss of your property to prove a point or fight over improper fees.

Hire a HOA/condo lawyer  to audit the fees and bring any possible action.  You need someone who is experienced not only in this area of the law, but the industry practices.

Tenants Attending HOA Meetings!

A common question I run into involves HOAs and condo associations (COAs) denying tenants attendance at meetings.  This is a big mistake for the associations.

The problem started with revisions to the Florida Statutes. Years ago Chapter 720 (HOAs) and Chapter 718 (COAs) used to provide rights for the members or "their authorized representatives" to attend meetings.  Over the years revisions to the statutes removed that language and the HOAs now erroneously believe they can ban non-owners from meetings.

This thinking runs afoul of the Fair Housing Act because Fla. Stat. 720.305(1) requires members, their tenants, guests and invitees to all comply with the governing documents and Chapter 720.  The FHA requires associations to provide those governed by the HOA access to attend meetings

Tuesday, May 19, 2015

HOA Rant

There is a great article posted on CyberCitizens for Justice yesterday.  It's a rant from Lindsey Nesmith in an article she wrote which printed in the Florida Weekly.  My hat is off to Ms. Nesmith for saying the obvious, but what many of us are afraid to say.

You can read the article at:  http://www.ccfj.net/HOARANT.html


Wednesday, April 15, 2015

How An Association Can Get Into Trouble Over Assessments - BOARD MEMBERS PAY ATTENTION!

With the volatile economy more and more associations are changing property management firms and law firms, but there are some problems which can arise and the association would probably be on the losing end of litigation.

Many owners contact me because their associations have made these changes and now they are unable to pay their assessments because the information regarding where to send payments is not timely distributed to the members.  When a member's check or electronic payment is returned, this is a refusal of a tendered payment, which is not permitted by Florida law.  Should the association attempt to lien and foreclose, the member not only has a valid defense, but could also bring a counter claim for breach of contract.

It is imperative for associations to notify their members immediately of any changes to make sure payments are not being rejected.

Tuesday, April 14, 2015

What to Do If Your Condo Association is Harassing You

I recently answered a question on avvo.com from a unit owner being harassed by their condo association (COA) because they were wanting maintenance and repairs done which were the responsibility of the COA.  I thought I should share my answer here.  This will work for HOAs too except the part about noticing the COA of your intention to arbitrate.  Currently the Dept. of Business and Professional Regulation (DBPR) does not have jurisdiction over HOAs.  Hopefully that will change July 1, 2015 if we can get a bill passed.  

One other point to note, arbitration is expensive.  It's not as expensive as litigation, but it still takes money if you want to be represented by a lawyer.  I don't recommend arbitration without a lawyer and you will see why in my answer below, which is:

Unfortunately your situation is not unusual in Florida.  The associations have too much power to abuse and harass the owners.

First, document everything. Start gathering evidence.  You have a statutory right to inspect and/or copy the records of the association by submitting a certified letter, return receipt with your request stating you are exercising your rights under FS 718.111(12).  The association cannot ask you why you want to inspect the records and have ten (10) days to provide you access.  Use a smartphone or some other device to scan the documents so you can avoid being charged for copies.

You can also submit a certified written inquiry and ask the association questions. This right is provided for under FS 718.112(2)(a)(2) and is unique to condo associations.  HOAs do not have the same benefit.  The association has thirty (30) days to respond.  They have sixty (60) days if they send the request to the association attorney, but they have to provide notice of the request being turned over to the attorney within thirty (30) days.

Next, you should send a certified letter to the association outlining your dispute, the resolution you would like and your intention to submit a petition for the dispute to arbitration before DBPR pursuant to FS 718.1255 if the dispute is not resolved.

Finally, you can file a complaint with the Dept. of Business & Professional Regulation (DBPR) against the license of the CAM and the CAM's firm, but you must be able to include proof of your allegations or nothing will be accomplished. The link is below.

While you can do all this without a lawyer, I don't recommend it, especially for the arbitration, which has specific procedures for bringing an action.  If you decide to send the letters, you may want a lawyer to review the facts of the case and the letters first so you can make sure you are requesting things which will support your case.  If the request is overly broad you can end up getting nothing useful or nothing at all.

Wednesday, February 25, 2015

Change Your Address with the Association!!


All too often I am asked for advice on dealing with associations filing a lien or foreclosing on a home and the first statement the homeowner makes is "I never received a notice."  Unfortunately, rarely will that work as a defense to save your home from being sold at a foreclosure auction by your association.  

You have to give your association your address where you receive your mail!  It's foolish to think if you don't update your address to get notices and payment coupons a judge not order a sale of your home.  You have a duty to notify the association of your most current address.  You also have a duty to ask for the amount due if you don't receive a notice or payment coupon.  The courts have ruled against homeowners consistently on these issues because if you live in a community that has a sign with the communities name on it at the entrance, you have notice your community is governed by an association and you pay assessments to that association.

Avoiding the mail or a summons does not work either.  All the association has to do is prove they mailed the notice to the correct address. If you avoid a summons the courts allow the associations to serve you by publishing a notice in some obscure small newspaper no one reads.  Its usually too late by the time you find out you have been served by publication because the court can then enter a default judgment against you.  Plus this just adds to the attorney's fees you are required by state law to reimburse the association (that's if you can come up with the money to pay off the demand or judgment and save your home).

The bottom line is don't be foolish.  If you can't afford to pay the association, call them and try to make payment arrangements.  The association can foreclose on your home quickly and faster than a bank because the association is the original creditor and not a third party who took it by assignment.

Wednesday, December 31, 2014

Pre-Suit Mediation or Not?

A homeowner asked the question on www.avvo.com if moving from the community would mean he no longer needed to provide his HOA with an offer of pre-suit mediation.

Moving would not circumvent the pre-suit mediation requirement because the suit would, I assume, be based on acts that occurred while you were a homeowner.  Pre-suit mediation is not just for homeowners either.  It covers members, vendors, invitees, licensees, and guests.


Not all disputes require pre-suit mediation.  FS 720.311(2)(a) provides:

Disputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association shall be the subject of a demand for presuit mediation served by an aggrieved party before the dispute is filed in court.

A dispute over a financial obligation or enforcement of a settlement agreement are not subject to pre-suit mediation.  Also, any dispute in which a party seeks an emergency injunction is not subject to pre-suit mediation.  It is important to note that what you may think is an emergency is usually not one in the eyes of the court.

I don't recommend going to pre-suit mediation without a lawyer.  The HOAs usually have veteran lawyers who are very good at bulldozing over unrepresented parties.