Friday, December 28, 2012

Does State Law Prevail Over Declarations? - It Depends

The typical answer to any legal question is "it depends." There are no simple answers. Ever.

When dealing with a community association (HOA or condo) and there is a conflict in state law and the governing documents (Declarations, Bylaws, Articles of Incorporation and Rules and Regulations) state law prevails, unless the documents were recorded before the law, but not if the law is remedial, curative or enacted as public policy. There are several cases dealing with this which have established case law or judge-made law, the most recent being Cohn v. The Grand Condominium, but the rule is based on the Florida Constitution, which provides no new law may be applied retroactively to change a contract. The governing documents are contracts between the association and the members.Thus, it depends.

When the documents conflict with each other, Declarations prevail over Articles, Articles prevail over Bylaws And Bylaws prevail over Rules and Regulations.

Monday, December 24, 2012

This Could Be You!!!

RESIDENTS AT WINDMILL VILLAGE MOBILE HOME PARK IN DAVENPORT PROTEST UNREASONABLE LOT RENT INCREASES.

When you buy a manufactured or mobile home and rent the lot, there are no guarantees your rent will remain at an affordable level. READ THE FINE PRINT!!!!








Tuesday, December 4, 2012

The War Is On - Florida Friendly Landscaping Battle with Florida HOA

Please visit this website to help Renee Parker fight the Summerport HOA in Windermere, Florida. http://www.indiegogo.com/Florida-Friendly/emal

In 2009 former governor Charlie Crist signed into law a revision to the Homeowner Association Act, Fla. Stat. 720.3075(4), which states "may not prohibit or be enforced so as to prohibit any property owner from implementing Florida-friendly landscaping …"

This law is very important as Florida faces droughts and is considering importing water from the State of Georgia due to water shortages, yet Florida homeowner associations are still taking homeowners to court claiming they cannot implement their Florida-Friendly plans. The HOA attorneys claim they are not prohibiting the Florida-Friendly landscaping, but have the right to regulate it. The problem is their "regulation" of the landscaping plans does indeed inhibit it.

Keep your eye on this case -- Summerport Homeowners Association v Jeff and Renee Parker. It's a very important battle.

Sunday, November 25, 2012

Associations & Board of Directors

The number of board members is determined by the Declarations, Articles of Incorporation and Bylaws. There must be a minimum of three by state law (Fla. Stat. 617 or 607); however, the governing documents of the association often provide for a range -- three to five or three to nine, etc.

If the documents provide for a minimum of three and some other number as a maximum, the number is increased by a vote. Either the Articles or Bylaws will list the initial number of directors and the document must be amended according to the amendment provisions of the document, meaning it could be either by a board vote or a membership vote.

By law, condo board members cannot be paid a salary and cannot enter into contracts between a business owned by the board member and the association unless the membership is notified and, if anyone objects, the membership ratifies the contract by vote. It is slightly different for HOA board members and the new law, enacted July 1, 2010, has been the subject of debate by association lawyers. My take is the literal meaning, which is no board member cannot "receive financial gain." Benefitting from a contract is financial gain as far as I am concerned

While the association is required to have an annual meeting and an election (the governing documents will provide the month), if there is no quorum of members present at the annual meeting, the election does not occur and the previous board stays in power or can appoint their replacements. The governing documents provide the number of members necessary for a quorum and if no number is specified it is 30%.

This is why it is important for owners to get out and vote!!! Don't complain if you don't participate!!

HOA & Condo Liens - Saving Your Home

Frequently I am asked to help homeowners settle their past due assessments with their condo or homeowners association. This is a very serious situation because the association can and will foreclose much faster than any mortgage company or bank.

Frequently homeowners make the mistake of assuming that 1) if the mortgage company or bank is foreclosing, the association cannot; 2) if the homeowner pays the past due assessments, but not the interest, late fees or attorneys' fees, the association cannot foreclose; 3) sending a check to the property manager will stop the foreclosure; 4) the homeowner can withhold assessments if the association is not doing their job and 5) the association can waive some of the past due assessments and charges.

These are all incorrect and a big mistake. Trying to get around these issues will only increase the attorneys' fees and other charges the association is entitled by law to correct.

It is very important to note that BY LAW, any payments are applied to attorneys' fees and costs FIRST, interest and late fees NEXT and assessments LAST. Unless you pay the full amount being demanded, you will always be past due in assessments and the association can foreclose.

Your options, if you cannot pay the full amount demanded, are:

1) Negotiate a payment plan;

2) File Chapter 13 bankruptcy.

The first option may not be the ideal solution because many association law firms charge $250 to set up the payment plan and $50 per month to process payments, which adds considerably to the amount due and owing.

Chapter 7 bankruptcy is not an option for saving the home. The discharge of association assessments in a Chapter 7 applies only to assessments that came due prior to filing bankruptcy and only extinguish the debt to the person, not the property. This means the association can still foreclose against the property. Also, the homeowner is still liable for assessments that come due after filing bankruptcy.

If a homeowner wants to avoid the foreclosure of the pre-petition assessment lien, the homeowner will have to pay off the pre-petition debt (either in full or through a settlement with the association) even though that debt has been discharged, or file a Chapter 13 bankruptcy which will allow the homeowner to spread the debt over a five-year payment plan. The association may or may not be entitled to 100% of the charges and if the association fails to file a claim, they will not receive any pre-petition assessments and charges.

Saturday, November 24, 2012

Nuisance Rules in Covenants and Restrictions

Many HOA and condominium documents contain a restriction that reads "an owner shall not cause anything to be done which will interfere with the rights of other owners and the enjoyment of their property," or something similar. I get a lot of questions from owners being disturbed by their neighbors asking why that rule is not enforced by the association. The problem is the rule is very broad, vague and hard to enforce. In fact, many times the courts refuse to enforce

The board of directors has the power to create reasonable rules. They cannot create new covenants and restrictions, but can clarify existing covenants and restrictions by creating reasonable rules and regulations. The association should address specific nuisances by creating a reasonable rule to specifically address the nuisance.

The key is figuring out what is reasonable. The courts use a "reasonable person" standard and there's lots of court cases to define that standard, but there is not any one definition for every set of facts and circumstances.

Sunday, November 11, 2012

Living in a Florida Community Association for Dummies

That's the name of the book I would like to write one day, but it seems time is in short supply and I would have to retire to find the time. That's not happening any time soon -- I like what I do.

Since that book may be a long time off, let's go over some basic rules.

First, board members -- try not to be a bully!! It's all in the approach. If you attack people, they will get defensive. It's human nature. Do not pick on your neighbors to boost your own self-esteem. You will soon become the most hated person in your community and might get your association in legal trouble. Once the lawyers get involved things tend to get unpleasant for a long time. There are times when you do have to be tough. Everyone has to pay their assessments and there are always those that just refuse. Everyone has to obey the restrictions, but there are always those that refuse. Don't confuse these people with the ones that are just not aware of the rules! A friendly letter first rather than a threat gets more done. Save the threats for those that do not respond or refuse to comply. Then there are the ones that just want to argue and cause trouble no matter who is on the board. These people have usually been victimized already by a HOA, maybe not yours. There is a legitimate diagnosis called HOA Syndrome that is a form of post traumatic stress disorder. I'm not telling you to go out and coddle you neighbors, just try to understand the situation before jumping in with both feet.

Next, homeowners -- the rest of these are for you so you can live in your community and hopefully stay out of trouble.

1. Read, read, read. Education is the best defense against oppression! At least in an association.


2. Read your Declarations, Bylaws and Articles of Incorporation. Yes, they are for the most part boring, but make sure you understand the rules. Not everything in those documents is legal, so if something doesn't seem right, check it out. You can find great information about Florida associations on websites such as CyberCitizens for Justice (www.ccfj.net), Avvo (www.avvo.com) or the websites of law firms representing the associations. Many of the association firms have blogs that are an excellent source of information. I read them daily myself!

3. Read the Florida Statutes governing your association if you can. Don't worry if you can't understand it all, but see if you can understand the basics, like the notice requirements for meetings. Condos are governed by Fla. Stat. 718, homeowner associations by Fla. Stat. 720, mobile home park lot tenancies by Fla. Stat. 723. All of them are governed by Fla. Stat. 617 if they are non-profit and Fla. Stat. 607 if they are not or Fla. Stat. 617 and 718,720, or 723 are silent on the issue. If you are not sure if you live in a condo association or a homeowners association, look to the first page of each governing document for a statute or a definition of the legal name of the association.

4. Go to meetings!!! The biggest problem in associations are the owners who become complacent and do not attend meetings or votes. Then they want to complain when their constitutional rights are taken away by rules and restrictions in the documents and amendments to the documents. Those documents are subject to amendment! The more owners paying attention to what is going on with the association, the less likely the board members will evolve into bullies. Board members are not paid (or shouldn't be) and volunteer their time. It takes a lot more time than anyone can imagine. Over time even the nicest board members can become cynical when the owners do not care enough to be involved in the association.

5. When you approach your association with a problem, try to have a solution to offer. That goes for board members and anyone else too. It's easy to complain, but you get more cooperation if you can help solve the problem.

6. Ask for those copies of the financial reports. Each year the association is required to either distribute the reports or send you a notice the reports are available. Get a copy and look at them. No one can waste the assessments or even embezzle them if there are people watching. Do not count of the property manager to be the guard. They often do not have enough time to watch as closely as they should or they may think the waste is okay.

Finally, for everyone -- just try to have some common sense and consideration of your neighbors. One of the best classes I ever took was during my Disney days and was called "inclusive communication." It was all about listening to what the other person is saying and trying to understand their point of view. It works! If it doesn't try the other Disney mantra -- put a smile in your voice. People have a hard time being rude and nasty if you don't return the same attitude.

Good luck and best wishes for community living.

Wednesday, October 24, 2012

Are the Declarations of Covenants, Conditions & Restrictions the only enforceable restrictions?

A unique question from a reader was received this week and I thought it would be interesting to share. A 1987 case, Young v Tortoise Island Homeowners Ass'n Inc., was about a homeowner wanting to install a roof that the HOA did not approve. There was nothing in the Declarations (CCR's) prohibiting the roof. While the court sided with the homeowner and allowed the roof, the court pointed out a very interesting rule of law. The court commented restrictions can be enforced that ARE NOT in the Declarations when there is a "unified scheme" in the community and the homeowner should know that variations are not allowed. The court stated that had the community had homes with only one type of roof (let's use a flat roof as an example), then the homeowner is on notice that no other types of roofs are allowed. This comes up occasionally with chain link fences. If you do not see a chain link fence in your neighborhood then you are on notice chain link fences are not allowed even if they are not mentioned in the Declarations.

Tuesday, October 2, 2012

Association Attorneys

One of the most frequent questions/complaints I receive from homeowners is their assessments pay for the association attorney, so the association attorney must represent the members.  Unfortunately, this is not true.

The association attorney represents the corporation which is your homeowners association.  He/she does not represent the members or the Board of Directors, even though at times it feels like the attorney is representing only the board.  In fact, association attorneys need to be especially careful they do not lose sight of the fact that they have to protect the corporation, sometimes even from the board, especially since the attorney has to work closely with the board.  The attorney's obligation is always to the association and what is in the best interest of that corporate entity.  The best interest of the corporate entity is not always what the majority of the members want either, although a good attorney will have an idea of what the community wants and balance the wants with the best interest of the corporation.

Many associations have a bad reputation, and sometimes not without a good reason.  Power breeds corruption.  However, homeowners need to understand the only source of income for most associations is assessments and the law and the courts in recognizing this do not provide an option for owners to withhold assessments.  Financial hardship, health problems, unemployment are not valid defenses to a foreclosure action to take the home.  Most associations do not want to take your home and would rather have the money so they can continue to operate, but they have a duty to make sure they collect the assessments because if they waive them for one owner, they waive them for all owners.  The board members could be personally liable if they waive assessments because they owe a fiduciary duty to the association.

Homeowners also need to understand that while the association seems unrelenting and impossible by demanding covenant violations be addressed, again they have a duty to make sure the community maintains a certain appearance.  The personal factors of financial hardship, health problems and unemployment cannot be considered to excuse poor maintenance and/or repairs to the home.  While it all seems cruel, your neighborhood would quickly become blighted and your property worth considerably less if excuses were permitted.  That doesn't mean all common sense goes out and the association still must consider changes to property that occur out of necessity, like poor drainage and poor soil creating the need for less sod and more mulch, rock gardens or pavers.

In my practice I like to balance my duty to the association with common sense that will not only keep the Board of Directors happy, but the homeowners too.  That's no easy task, but I believe my approach not only helps the community, but keeps down the litigation.  That's right you heard me -- a lawyer that believes in keeping down the litigation -- my bread and butter.  Why?  Because in the end you all have to live in the community and I don't.  No good ever came from bullying people and tearing apart a neighborhood!  Besides, I like to sleep at night and you need a good conscience to get a good night's sleep.

Mobile Homeowner Associations

One of my favorite legal websites is www.avvo.com, where readers can post interesting questions.  Today a reader asked me about how to form a homeowners association for mobile home parks, which are voluntary associations under Fla. Stat. 723.  Here's my answer:

There is a special statute for mobile home park lot tenancies, Fla. Stat. Chapter 723. You can organize a HOA, which is voluntary and different from a HOA under Chapter 720 for homes on owned lots. You would need a majority of the members to approve having the HOA represent their interest and it's really a good thing, especially when those lot rent increases come in every year. The Department of Business and Professional Regulations and the Federation of Mobile Home Owners both have materials to help you organize. There are sections of the Florida Administrative Code that also govern the parks and supplement the statutes. You can also partner with other associations in other parks for help. I know most of the associations are willing to be helpful. Check outwww.fmo.org for the Federation of Mobile Home Owners and DBPR's website for the statutes, rules and other materials:http://www.myfloridalicense.com/dbpr/lsc/index.html.

Wednesday, September 26, 2012

Buying a Foreclosed Property


The most frequent question I am asked lately concerns the unpaid assessments on a foreclosed property being sold by a bank.  Anyone buying a foreclosed property must really do their homework and not only check county records for liens, but check with any homeowner or condominium association to find out the balance of unpaid assessments.  This debt is not extinguished in a foreclosure.

Condominium associations and homeowner associations have a continuing lien that runs with the land.  The safe harbor provisions of Fla. Stat. 718.116(1) (for condominiums)  and 720.3085(1) (homeowner associations) apply to the banks only and not any third party purchasing from the bank.  The balance of the assessments is due and payable by any buyer.  You can go after the previous owner for the debt, but chances are they do not have sufficient assets to pay.

There is one thing you can do.  Insist on an itemized statement with no lump sums.  This is one area that is subject to over billing practices because the previous owner is not around to dispute the debt.  There is disagreement in the legal profession on whether or not legal expenses for the association defending the foreclosure can be attached to the debt, but until someone has a lot of money to litigate this issue and then possibly appeal the decision, the only recourse against these fees is to ask the association to consider waiving them.

Thursday, July 12, 2012

Mobile Home Park Lot Tenancies - You Own Your Home But Rent the Lot

A good portion of my practice in the past couple of years has been from residents in mobile home/manufactured home parks where the resident owns there home, but rents the lot.  The parks are governed by Fla. Stat. 723 and regulated by the Department of Business & Professional Regulation ("DBPR"). But with the protection of the statutes and regulation by the State of Florida, many residents find themselves in a terrible predicament when the rent increases price them out of their homes. A surprising number of people are walking away from their homes and find no comfort in knowing they have legal rights, but the high cost of litigation is a barrier to justice.

Here's how it usually happens and unfortunately it happens to our elderly most often.  A family decides to move/retire to Florida.  They come to Florida looking for a place to live and see these great advertisements about mobile home/manufactured home parks with all the amenities (clubhouse, pool, golf, shuffleboard, fishing, library, etc.). They are given literature that encourages them to enter into a lifetime lease rather than investing $35,000 or more in buying a lot. They are even given a chart that shows the amount of the lease is estimated at approximately $3,756 a year with the estimated annual rate to be approximately $3,756. The * means there is fine print that says the rent will increase the greater of 5% or the increase in the consumer price index. Only it's not worded that way. What it actually says is the greater of 5% or the government Consumer Price Index (CPI)." See the difference? One tells you it's going up at least 5% while the other implies it could go up 5% but may not. It also says that if you invest the $35,000 at 6% interest you will only be paying around $1,856 a year for rent if you apply the interest to the rent. It also says that if the rent is increased 5% you should also have a 5% increase in your Social Security and pension.

So, what goes wrong?" you ask.  The rich park owner increase the rent 5% each year no matter what -- that's what's wrong. Your Social Security does not increase for three years straight, but your rent goes up that 5% each year. Then there are the pass-through taxes. That's right! That ad that said you never pay property taxes means you never pay them to the county, but the park owner collects them from each lot and pays them for you. Two problems with that -- 1) the park owner gets the tax deduction and 2) the increase in property taxes each year is added to your base rent so your rent really increases 6% to 12% each year.

Why would anyone agree to this you ask? Why didn't they read the fine print you wonder? Because they are given the advertisement when they visit the park and are sold a home, but they are not given the actual contract, called a prospectus, and the lot rental agreement until they show up at the gate with all of their possessions on one truck, their new home on another and their former home has been sold with no chance of getting it back. They are literally given the documents at the gate and the deposit is non-refundable! Close to $10,000 lost if they back out of the deal.

The new resident goes ahead with the deal and moves in because they are put on the spot and don't know what to do.  Remember, at this point they do not know about Fla. Stat. 723 or DBPR. So now they're living in their new home for two years, which by the way they may have gotten the first year's rent for $99, which further hides the true costs of this deal, when they get the first rent increase and realize they are paying property taxes and other fees. Moving is usually not an option because these homes are pretty much permanently attached to the ground. They can be moved just like a house can be moved, but the price tag is around $30,000 and the structure is usually compromised some in the move.

As if the resident is not feeling warm and fuzzy about moving to Florida now, the park owner decides the resident needs to re-sod the lot. That's right -- the owner wants you to pay for major upkeep to a lot you do not own. And you might also end up paying the water bill for the irrigation system to water common areas because the irrigation system is tied into your lot if you live in the right spot!

Welcome to Florida!!! How much money do you have to lose?

By the way -- the U.S. Department of Justice revealed Florida is the number one state for corruption in this country.  And I always thought that title belonged to my home state.

Your Mortgage Trust May No Longer Exist


If your mortgage is held in a securitized trust (the Plaintiff is a trustee) you should search the Securities & Exchange Commission website using their EDGAR database.  The lastest discovery in foreclosure defense is that the trust may no longer exist!  If the trust does not exist, the bank cannot be a trustee.

To find out if your mortgage trust has been dissolved, find the name of your trust in the database and then click on the links to the documents that have been filed.  If the trust has filed a form 15-15D there is a good possibility it no longer exists because this form is used to suspend financial reporting requirements.  You will need to submit an inquiry to the SEC to determine if the trust still exists because there are other reasons for filing the form, but it is definitely worth the trouble if you can get the foreclose dismissed because the Plaintiff Bank lacks standing and capacity.

Thursday, June 7, 2012

Estoppel Scams

Buyer Beware -- especially if you purchase at a foreclosure auction.  The latest scam is to inflate amounts due for past due assessments by claiming excessive fines, attorneys fees for the mortgage foreclosure work and excessive costs for collections.



The HOAs are protected because the debt runs with the land.  While you can collect the past due assessments from the previous owner, you are liable for any assessments currently due. Whether or not you able to collect from the previous owner is always a challenge.

This does not mean you are completely without defenses. There is a new trend for HOAs to lump on all kinds of charges to run the bill up and many may or may not be legal. The problem is it could easily run way more to fight them.

You should pay them a reasonable fee ($75-$125) for an estoppel and demand an itemized accounting of all charges (no lump sum amounts). By law they have 15 days to provide this or you can file summary proceedings in court.

Demand any fines be documented with proof of notice that the owner was notified of a covenant violation and an independent fining committee met and voted to impose any fines. This is one of the most abused items.

There are no court cases on point, but I argue legal fees for the HOA as a named defendant in a mortgage foreclosure are the costs of doing business. No where in the Florida Statutes or the Rules of Civil Procedure do I find any authority for a defendant to pass on the costs of litigation to a co-defendant without a court order. HOA attorneys do this anyway. Because they are entitled to attorneys fees for the collection of past due assessments without a court action filed, they believe the statute gives them the right to pass on all attorneys fees without court action. I disagree!

Check if the HOA is allowed to charge late fees and what the maximum interest they are allowed to charge. This information is in their Declarations and Bylaws. Many overcharge!

Tuesday, May 29, 2012

HOA Dispute - Priceless


You gotta love this Neighborhood dispute.


A city councilman in Utah, Mark Easton, had a beautiful view of
the east mountains, until a new neighbor purchased the lot below
his house and built a new home.

The new home was 18 inches higher than the ordinances would
allow, so Mark Easton, mad about his lost view, went to the city
to make sure they enforced the lower roof line ordinance. The
new neighbor had to drop the roof line, at great expense.

Recently, Mark Easton called the city, and informed them that
his new neighbor had installed some vents on the side of his
home...  Mark didn't like the look of these vents and asked the
city to investigate.

When they went to Mark's home to see what the vents looked
like, this is what they found... 









The City Council said the vents can stay since there is no ordinances referring to
shutter design.

 


Tuesday, May 22, 2012

Florida Friendly Landscaping - It's the Law!


July 1, 2009 the Florida Legislature enacted a new law, Fla. Stat. 720.3075(4)(a) and (b), which makes it unlawful for any association to prohibit the implementation of Florida Friendly Landscaping. Florida Friendly landscaping is defined as any landscaping that conserves water and reduces the use of pesticides, herbicides and fertilizers.

Despite this wonderful new law some association attorneys are still demanding owners plant St. Augustine grass, which is not Florida Friendly in most locations, especially Central Florida.  These overzealous attorneys claim that while the associations cannot prohibit Florida Friendly Landscaping, they are entitled to regulate it and can still require a percentage of the lot be sod.  While the statute does not address the need for owners to  submit applications to their Architectural Review Boards (or committees), good common sense would suggest the application be completed and submitted.  This does not, however, give the association the right to deny the landscaping and to suggest the association can regulate and require certain grasses and percentages of the lot to be sod goes against the very clear meaning and wording of the statute.

The Florida Friendly Landscaping website, which is hosted by the University of Florida and the Southwest Florida Water Management District, have an interactive database.  You can select the type of plant according to the amount of sun, water, soil type and salt content of the soil.

The website also has a list of plants and their requirements for growth.  For example, Bermuda grass and Bitter Panic grass on the only two grass listed for dry conditions. St. Augustine grass is listed as requiring wet soil. Other grasses, such as Zoysia, Centipede and Lopsided Indian requrie moist-dry conditions.  This clearly establishes St. Augustine does not conserve water and landscaping companies recommend watering St. Augustine grass four times a week!

The problem with the association attorneys is they are counting on you not spending the money on huge legal bills to fight for your rights.

Sunday, April 29, 2012

The Lien and Foreclosure Process in Florida

The association is required to give notice to the homeowner prior to filing the lien by sending two copies of the notice, one by regular mail and one by certified mail, that includes the amount due and the deadline for payment. For HOAs this is 45 days and for condos this is 30 days. If you missed payments, the lien will include the assessments, interest, attorneys fees, and if the governing documents allow, late fees. Once you are turned over to an attorney for collections any payments are applied to all the fees first and assessments last. 

After the lien is recorded the association must then go through the same process to foreclose before filing to foreclose on your home. Once you receive a summons, you have 20 days to file an answer and affirmative defenses or a motion to dismiss. The association will file a motion for summary judgment, which means there are no disputed facts and the association should get your home without a trial. 

DO NOT ATTEMPT TO HANDLE THIS WITHOUT AN ATTORNEY. Your best option is to negotiate a payment plan or file Chapter 13 bankruptcy to put this in a 5-year payment plan. Chapter 7 will not save the home. 

If you missed any payments, fighting over the amount with the association is useless in almost all instances because it will generate attorneys fees that you are liable for and must be paid to keep your home. The courts will award the attorneys 100% of their attorneys fees if you are at fault, even if it's a small amount and their numbers are wrong. 

The courts are facing having their funding cut thanks to the foreclosure cases clogging up the dockets. In many cases good case law is being ignored to move the cases out of the courts and owners are being denied justice and due process because of budget concerns. This has changed the owners slim chance to virtually no chance, but that's my personal opinion.

Sunday, February 12, 2012

Buyer Beware - If you are new to a HOA PLEASE READ

With the new year comes new woes for homeowners living in an association.  Many homeowners, when purchasing a home subject to an association, are unfamiliar with the assessments and rules regulating their parcel use.  A common complaint I hear is the homeowner did not know they had to pay assessments or thought they only had to pay once a year when they are actually required to pay semi-annually, quarterly or monthly.

The new owner finds out their assumptions were incorrect when they get a Notice of Intent to Lien for unpaid assessments or a Notice of Covenant Violation.  The Intent to Lien notices are particularly troubling because this is usually the first notice the homeowner has that assessments are past due and the demand often includes hefty late fees, interest and attorneys' fees.  Then every attempt to resolve the debt incurs additional attorneys' fees because every communication with an attorney is billable.  Past due assessments are the only time an association can recover attorneys' fees without litigation actually being filed.

Any attempt to set up a payment plan incurs additional attorneys' fees plus fees for administering the plan.  It's a moving target to try and resolve this as the appellate courts noted in their ruling in the Ocean Two case.

To make matters worse, there is no defense to not paying assessments, so disputing the debt only adds to the bill.  Common sense would dictate the association has a duty to send a past due notice before turning the matter over to an attorney, but there is no law requiring the association to do this.  If the debt is not paid the association can foreclose and take the home.  It's a very unfair system and often abused by property managers and association attorneys.  Hiring an attorney to represent you in a dispute for unpaid assessments means spending thousands of dollars that cannot be recovered.

This is a case of BUYER BEWARE.


Advice for new homeowners:


  1. Every new homeowner should check if their property is subject to an association.  Sometimes it is not even clear there is an association.  If your deed references a subdivision name or their is a sign at the entrance of your neighborhood, then you are most likely subject to a mandatory association.
  2. If you were not given a copy of your governing documents (Declaration of Covenants, Articles of Incorporation, and Bylaws), either download them from the official records of your county (search on YOURCOUNTY County Official Records) or ask your association for a copy.  They are required to provide these free of charge.  You can find the association's contact information on www.sunbiz.org.
  3. READ THE DOCUMENTS THOROUGHLY.
  4. Check with your association to find out when dues are due, how often and the amount. Don't wait for them to send you a bill. It may never arrive.
  5. Make sure you attend any meetings to discuss assessments and/or the annual budget.  It's your chance to protest how your money is being spent.
  6. If you do not understand the governing documents, seek advice. There are many websites available that discuss associations.
  7. Vote at your annual election! Even if you live in a great association, it can quickly turn into a nightmare of the wrong people are elected or, worst yet, the wrong people are placed into office without a vote because there is no quorum to hold an election.
Education is the best weapon against a tyrannical association!

Wednesday, January 11, 2012

Hurricane Shutter Question

Question received by email:
I am on the board of our HOA. Due to recent media coverage, we are receiving inquiries on the duration a house may leave their Hurricane Shutters closed.

As some of our neighbors are seasonal, we have seen that their shutters remain closed during the off-season, thus mostly all summer.

At present, our covenants do not contain requirements for shutter mounting or dismounting outside of imminent storms.

What is the current Florida law on Shutter's remaining mounted outside of approaching storms, if any, and the ability for an HOA to stipulate when they may be mounted and must be removed.

Also, is there any pending legislation on the horizon to this effect?

AK, Palm Beach Gardens, FL



Response:



There is currently no legislation governing hurricane shutters in the Homeowner Association Act, Fla. Stat. 720.  The Condominium Act, Fla. Stat. 718, has provisions, but nothing addresses duration.  There is currently no proposed legislation that would address the duration issue.

Since hurricane season starts June 1st and goes through the month of November, closed hurricane shutters are an issue for a large number of associations who have part-time residents from the North.  The association can make reasonable rules and regulations to address issues with the repair and maintenance of property if the declarations provide for an architectural review board or committee to approve changes.  Enforcement of that rule is the tricky part because an association can only engage in conduct authorized by the governing documents.  An association cannot fine an owner unless fines are provided for in the declarations.  If no fines are provided for the association would need to bring an action in court for an injunction to force compliance, which is expensive with no guarantee the injunction would be granted.  A judge will determine if the rule is reasonable, and most likely will find it reasonable.

If the declarations do provide for fines, then the procedures outlined for notice and a hearing before a 3-member committee must be adhered to before the committee can impose a fine.  A board of directors cannot impose fines.

Keep in mind that any meeting in which changes to the rules regulating parcel use are going to be discussed requires notice be mailed to each owner at least 14 days in advance with a statement describing the discussion and a sign must be posted in the community at least 14 days in advance also announcing the discussion.

My suggestion is to find a creative way to solve the problem without attorneys whenever possible.  Once lawyers become involved your community usually becomes embroiled in turmoil because owners become defensive.  Establish the rule and then maybe a committee could contact the owners of the seasonal residents to make sure they are aware of the rule and ask them if they have anyone local who could install and remove the shutters as storms approach.  I’ve found the best approach is not only identifying a problem and providing a solution, but looking past the solution to possible problems that will result from the solution and have a plan to address those issues.