Fla. Stat. 720.305(c) of the Homeowners Association Act limits the cost of copies to $0.50 per page unless they have to send them out to be copied, in which case they can charge a reasonable fee for staff to bring the documents to a vendor for copying. The same statute requires them to keep sufficient copies of the governing documents (Declarations, Bylaws, Articles of Incorporation) on hand to provide members with copies. While the statute doesn't outright say these documents must be provided free of charge, industry practice has been to provide them for free.
You could always go online and download them for free. Search on your county's "Official Records" and once you're on the website search by your association's name. You will also want to restrict the search to Condo documents, restrictions, plat-related, and assignments so you don't get too many results.
You should check them online anyway to make sure you have the latest documents and they are recorded. There are many associations that do not reord their documents, either due to an oversight or because they isn't get member approval, but they will enforce these documents as if they are recorded because most of the time they can get away with it without anyone challenging them.
If you are in a condo association, Fla. Stat. 718.112 has a similar provision.
CONDO & HOA LAW BLOG: The latest news on Florida laws regulating condominiums and homeowner associations.
Tuesday, February 26, 2013
Friday, January 11, 2013
Is Your HOA Mandatory or Voluntary?
A very common assumption people make when they it purchase a home in a community managed by a homeowners association is that membership in the association is mandatory. Why wouldn’t they when the association asserts it is and demands payment?
The truth is the association is not going to tell you if it has lost status as a mandatory association or, worse yet, was never mandatory. The State of Florida does not regulate homeowner associations and does not certify them as mandatory, despite many associations telling their members the State has approved them or certified them. The State’s only involvement is to accept their corporation registration if the filing fee is paid.
All homeowners need to read the governing documents of their association: the Declarations, Bylaws and Articles of Incorporation. A review of these documents is necessary to check if the association was properly created to form a mandatory association prior to property being sold or to check if the documents may have expired under the Marketable Record Title Act (MRTA), which extinguishes deed restrictions after 30 years unless certain actions are taken to preserve them.
Other problems I have encountered in my practice of law include associations formed to enforce land use restrictions that fail to designate an association, older documents that fail to assign the developer’s rights to operate the community to an association, and illegal amendments to the governing documents.
Anyone who doubts the status of their association as a mandatory association should consult with a competent HOA or condo lawyer to review the documents.
The truth is the association is not going to tell you if it has lost status as a mandatory association or, worse yet, was never mandatory. The State of Florida does not regulate homeowner associations and does not certify them as mandatory, despite many associations telling their members the State has approved them or certified them. The State’s only involvement is to accept their corporation registration if the filing fee is paid.
All homeowners need to read the governing documents of their association: the Declarations, Bylaws and Articles of Incorporation. A review of these documents is necessary to check if the association was properly created to form a mandatory association prior to property being sold or to check if the documents may have expired under the Marketable Record Title Act (MRTA), which extinguishes deed restrictions after 30 years unless certain actions are taken to preserve them.
Other problems I have encountered in my practice of law include associations formed to enforce land use restrictions that fail to designate an association, older documents that fail to assign the developer’s rights to operate the community to an association, and illegal amendments to the governing documents.
Anyone who doubts the status of their association as a mandatory association should consult with a competent HOA or condo lawyer to review the documents.
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.
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!!!!
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.
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