Condo & HOA Law

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

2012-02-12T09:31:00.000-08:00

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:

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.
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.
READ THE DOCUMENTS THOROUGHLY.
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.
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.
If you do not understand the governing documents, seek advice. There are many websites available that discuss associations.
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!

Hurricane Shutter Question

2012-01-11T22:01:00.000-08:00

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

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

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

What is the current Florida law on Shutter's remaining mounted outside ofapproaching storms, if any, and the ability for an HOA to stipulate when theymay 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 shuttersin the Homeowner Association Act, Fla. Stat. 720. The CondominiumAct, Fla. Stat. 718, has provisions, but nothing addressesduration. There is currently no proposed legislation that would addressthe duration issue.

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

If the declarations do provide for fines, then the proceduresoutlined for notice and a hearing before a 3-member committee must be adheredto before the committee can impose a fine. A board of directors cannotimpose fines.

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

My suggestion is to find a creative way to solve the problemwithout attorneys whenever possible. Once lawyers become involved yourcommunity usually becomes embroiled in turmoil because owners becomedefensive. Establish the rule and then maybe a committee could contactthe owners of the seasonal residents to make sure they are aware of the ruleand ask them if they have anyone local who could install and remove theshutters as storms approach. I’ve found the best approach is not only identifyinga problem and providing a solution, but looking past the solution to possibleproblems that will result from the solution and have a plan to address thoseissues.

Victory for Tenants!!!

2011-12-14T07:42:00.000-08:00

I just received a telephone call from a tenant who had previously called me for advice. Her condo association was demanding she pay them rent, under the new law, because her landlord was past due in assessments and when she refused they filed a court action to evict her. I advised her that unless the Declarations stated the association was organized pursuant to Fla. Stat. 718 "as amended from time to time," the association could not evict her as they had no authority and a new law could not be applied retroactively to change the Declarations. The judge threw out the eviction case!!!

Building A Better Community

2011-12-06T19:42:00.001-08:00

It interesting how one HOA election can turn life into your community into a living hell. It's also interesting how the power of a few people can use the election process to change that living hell back into a community you are proud to be living in.

After years of fighting my own battles with my own HOA I was pleasantly surprised when my husband produced enough proxy votes at our annual meeting to have the first election since we bought our home in 1998. With a majority of the votes he was able to oust the old board and put in some fresh people, including himself as President. That was something I never would have expected. Our experience made him very anti-HOA.

We were shocked to learn that our HOA had been spending three times the amount of money on landscaping as it had spent on police patrols. With nine homes robbed in two months, we didn't see the point of having a nice looking community that no one felt safe living in, so the first thing the new board did was hire private security. Not that local law enforcement were not doing a good job, but private security is $15 a hour less than police patrols. And the guys with PCI Security are amazing. Our neighbors are relieved and grateful. It's nice to see happy, smiling faces in the community again.

The new board also listened to owners who tried to pay their past due assessments and were refused with threats of foreclosure by the HOA. Not any more!!! Not only is it illegal to refuse payments, but who in their right mind wants to foreclose on a home when the owner is trying to pay! The new board has terminated services with the association attorney and put a moratorium on foreclosures and covenant violations until they can review each case.

I'm proud of the new board with their slogan "Neighbors Helping Neighbors." That's the way it should be.

Condo Board Members Must Be Certified!

2011-12-02T06:11:00.001-08:00

Under the revised provision of Fla. Stat. 718, known as the Condominium Act, board members of condominiums must submit a certified written statement that they have read the governing documents of the association and the Florida Statutes and understand them to the best of their ability, or have a certificate from a class providing training that has been approved by the Department of Business & Professional Regulations. This certified writing or certificate must be on file within 90 days of the board member taking office or the board member will be suspended from the board automatically. The certificate must be kept by the association for five years and the board member must provide a new certificate after five years if they are still on the board.

Mortgage Foreclosure Audits

2011-12-02T06:06:00.001-08:00

The U.S. Treasury has begun, on November 1, 2011, sending out letters to homeowners, who were foreclosed on during 2009 and 2010, to provide them with information regarding a free audit of their foreclosure and possible compensation if the foreclosure was improperly conducted.

The process is slow and results are not immediate, but it expected that more than 3 million letters will go out to homeowners over the next few months.

Most of the big banks and foreclosure companies entered into a consent agreement as a result of an investigation and a consent order issued by the U.S. Treasury, Office of Comptroller. The consent order was issued in April of 2011.

For more information visit the Comptroller's website: http://www.occ.treas.gov/

Marketable Record Title Act ("MRTA")

2011-10-16T12:13:00.000-07:00

The Marketable Record Title Act ("MRTA"), known as "MARTA", is getting a lot of attention these days as older homeowner associations (HOAs) are reaching their thirty-year anniversary. Under MRTA, deed restrictions expire after thirty years unless the HOA takes proactive steps to preserve them or revitalizes them after they have expired.

There is a lot of controversy with associations that did file a Notice of Preservation, but failed to comply with the statute, making their notices defective. It is important to review the statute for the year in which the preservation was recorded because it has changed substantially. Previously, the statute required the members, by majority vote, approve a new set of Declarations and those Declarations could not be more restrictive than the originals. The current statute allows for the Board of Directors to vote to preserve the deed restrictions, but there are still notice requirements and filing requirements that are sometimes overlooked.

Great Article About Greedy HOA Lawyers

2011-07-02T13:52:00.001-07:00

http://www.tampabay.com/news/experts-pinellas-lawyer-takes-foreclosure-fight-to-ethical-edge/1178381

HUD Emergency Homeowner Loan Program (EHLP)

2011-06-28T08:27:00.000-07:00

HUD Emergency Homeowner Loan Program (EHLP)

New Change to HOA Law

2011-06-28T05:48:00.000-07:00

First the Florida Statute governing homeowner associations, Fla. Stat. § 720 et seq. provided the HOAs with the authority to suspend your use of amenities (the pool, clubhouse, tennis court, etc.) if you were niney (90) days delinquent in paying your assessments. [Fla. Stat. § 720.305(2)] Then it was changed to give the HOAs the authority to do the same if you were late paying any monetary obligation, including fines. Thanks to our elected leaders, the statute giving HOAs the statutory right to impose fines was overturned.

NOW, beginning in July 1, 2011, your HOA has the authority, by statute (and this will be important later) to deny you the right to use the amenities if you have any outstanding covenant violation. So, if they want to keep you out of the pool, they can issue violations for not cutting your grass, or planting landscaping without their approval. It still requires a hearing before a three-member committee that is no relation to board members, but that part of the statute is not allows complied with by the HOA.

It is important to keep in mind these legislative changes do not affect your HOA unless your Declaration of Restrictive Covenants refers to Fla. Stat. § 720 and adds the magic words "as amended from time to time." Thanks to the Florida Supreme Court ruling in Cohn v. The Grand Condominium, (36 Fla. L. Weekly S129a, March 31, 2011, homeowners still have a fighting chance.

For the current version of the statute go to: http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0720/0720ContentsIndex.html&StatuteYear=2010&Title=%2D%3E2010%2D%3EChapter%20720

New Florida Laws Effective July 1, 2011

2011-06-25T14:55:00.000-07:00

Check soon for a summary of the changes.