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.
CONDO & HOA LAW BLOG: The latest news on Florida laws regulating condominiums and homeowner associations.
Friday, December 28, 2012
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!!!!
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.
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!!
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.
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.
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.
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.
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