Archive for February, 2013

Florida’s Freeway to Foreclosure

February 7, 2013

In a move that would recognize the value HOAs and condo associations add to their communities, Florida is considering a bill that would fast-track association foreclosures.  This would get defaulting/nonpaying owners and slow-to-foreclose banks out of the picture faster and allow the community to ensure that properties are marketable.  Hopefully the result would be a decrease in unkempt, deserted properties stuck in legal limbo for months and years.

It will be interesting to see how it all plays out.  There are some that challenge whether it is fair to require the owner to pay all back assessments in order to challenge the assessment foreclosure in court.  It seems to me that the law should simply distinguish between regular assessments and special assessments, for which the owner had title notice and should pay, and any limited assessments or fines piled on top of that.

Ranking: Brevard top U.S. spot for buying a foreclosure

 

http://www.orlandosentinel.com/business/os-overdue-hoa-bills-20130206,0,2306446.story

 

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State of Lincoln Finds HOA Cops Don’t Create Police State

February 4, 2013

 

In an interesting development from LaSalle County, Illinois, the state Supreme Court has upheld the right of a private, covenant-based police force to detain and ticket speeders.  Is it shades of Snow Crash, or perhaps just a recognition that a multi-thousand-acre community needs to be able to keep the peace?

What I found interesting was that the policing was based almost entirely on some fairly vague provisions in the articles of incorporation:

“To promote and enhance the civic and social interests of the
owners of real estate in Lake Holiday Development, LaSalle
County, Illinois; insofar as those interests relate to the
maintenance of Lake Holiday, the dam constructed at the
headwaters thereof, and appurtenant structures thereto. To
acquire and hold real estate in its corporate name; to construct
and maintain thereon buildings and structures of all types,
roadways, beaches; and, to do all other things reasonably
necessary therefor; memberships herein shall be restricted to
owners of land in Lake Holiday Development ***.”

Based on this broad power, the Association had adopted more specific (barely) Bylaws empowering the Board to adopt and enforce rules and regulations:

The Board of Directors shall adopt such rules and
regulations relating to the use of association property as they
may deem reasonably necessary for the best interests of the
association and its members. They may also in order to better
effectuate said rules and regulations, adopt reasonable
sanctions for non-compliance therewith. *** The Board of
Directors shall also employ a sufficient number of persons to
adequately maintain association property.

To me, the analysis should be whether the rules and regulations adopted by the Board were outside the scope of powers permitted by the CC&Rs.  However, the Court of Appeals focused on questions of private policing powers only, so the Supreme Court used that analysis as well, holding that “courts generally will not interfere with the internal affairs of a voluntary association absent mistake, fraud, collusion or arbitrariness.”  An HOA evenhandedly enforcing its rules, obviously, is not mistaken, fraudulent, collusive or arbitrary.

I’m not sure if the courts here in Idaho would follow the same analysis.

-Jeremy O. Evans

 

Sources:

http://www.appellatestrategist.com/uploads/file/113907.pdf

http://www.jdsupra.com/legalnews/illinois-supreme-court-holds-private-sec-76668/

http://www.securitymanagement.com/news/court-rules-homeowner%E2%80%99s-association-can-enforce-rules-using-private-security-0011912