Tuesday, October 29, 2013

You vs. the HOA

Typical HOA disputes in the State of Florida fall into two categories:

1)  Unpaid assessments, often with a lien and/or foreclosure by the HOA
2)  Covenant violation disputes, with or without fines, which can be a lien and/or foreclosure

***** Yes, the HOA can take your home for covenant violations if the unpaid fines exceed $1,000.00 ***

How do you stay out of the bull's eye of your HOA and not risk losing your home?  You need to know your rights and duties to protect yourself and your home.  It's not easy when we have created this monster that is a perfect storm for corruption because HOAs are not regulated by the state.

First, you need to know you cannot withhold payment of assessments under any circumstances.  It doesn't matter your HOA is not keeping up the community or even if the board of directors is illegal using the funds for their own personal use.  You are still required by law to pay the HOA.  One of the only defense to non-payment if the HOA files to foreclose is you actually paid and it was not credited properly to your account. This is difficult, if not impossible to prove, so the likelihood of defeating a foreclosure is slim.  The other defense, equally difficult to prove, is lack of notice of the assessment increase and/or the meeting to approve assessment increases.  The HOA is required to mail notice to each homeowner 14 days in advance and include in the notice an assessment increase is being considered.  If not, the meeting is improper.   Do not, however, withhold payment thinking you can win this.  Risking your home to make a point is not a good idea. Your best option to resolve this is to request a payment plan.  If the matter is has been turned over to the HOA attorney, and it has if there is a lien, deal with the HOA attorney and not the HOA directly.  You are wasting time and money if you don't work with the HOA attorney.  By law the HOA is entitled to all assessments, interest, late fees and attorneys' fees.  Any payments are applied to all non-assessment charges first and assessments last.  Sending a check directly to the HOA will have no effect except to increase attorneys' fees and you will continue to be past due.  If the HOA and its attorney refuse to give you a payment plan, consider a Chapter 13 bankruptcy.  A Chapter 7 bankruptcy will not save your home, but a Chapter 13 will.

If you don't receive a statement or invoice for assessments call the HOA or property manager to get one. Not receiving a bill for assessments does not relieve you of your duty to pay assessments.  There is no law requiring the HOA to inform you your account is past due.  They are only required to give you an intent to lien notice 45 days prior to filing a lien, which means you already have incurred other non-assessment charges and attorneys' fees, and another notice 45 days prior to foreclosing on your home.

Covenant violation disputes can end up having the same issues as non-payment of assessments when there are fines imposed that are unpaid.  The best way to resolve covenant violations is to contact the HOA and let them know of your intention to comply or resolve the situation.  

Any and all improvements to the outside of your home require an application to the Architectural Review Board or Committee (ARB or ARC) with few exceptions.  It's better to submit an application you don't need approval for than to find yourself in a war with the HOA.  

The HOA must send you notice of the violation and if they intend to impose fines, they must give you at least 14 days notice a hearing will be held before an impartial committee of at least three people to vote on imposing a fine.  Remember my earlier comment about corruption?  While the members of the fining committee cannot be board members, employees, or agents of the HOA, or their family, the HOA will recruit people who will do what the HOA wants and fine you.  Correct the violation quickly if you get this notice.

Finally, the best way to protect yourself is to get involved and get your neighbors involved.  Corruption is easy when no one is watching.  Since the State of Florida has yet to start watching, you and your neighbors should.  People are less likely to break the law if they think they will be caught.

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