Posts Tagged ‘Florida’

Florida Tardis Scuffle

January 7, 2015

TARDIS-time-machine-1415

Apparently, the CC&Rs explicitly prohibit any improvements that are larger on the inside than on the outside…

http://www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2015/1/4/parrish_tardis_time.html

http://www.themarysue.com/florida-homeowners-association-tardis/

http://www.wtxl.com/news/florida_news/florida-couple-told-to-remove-tardis-from-driveway/article_dc0ec42a-95c3-11e4-922b-0bfcb7ac4f6b.html

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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

 

Foreclosing on the Forecloser II: Florida Foreclosing Fun

December 26, 2012

Apparently, somebody at CNN Money decided folks were done with the holiday cheer bit and were ready for some good old fashioned revenge stories.  Like the one where the Association owners start foreclosing on the banks that foreclosed on their neighbors.

Yes, an HOA CAN do that.  In fact, a lot of the usual reasons not to turn to foreclosure don’t apply when a bank owns the house.  The HOA can actually end up looking like the good guys compared to a foreclosing bank.

In my experience in Idaho, banks are relatively good at paying their bills.  As a group, they are just a little slow, and they try to avoid paying until they have a buyer lined up.  It makes sense that in a community with a high monthly fee, these fees could quickly hit the HOA’s bottom line and require quick action.

http://realestate.aol.com/blog/2012/12/26/payback-time-florida-homeowners-foreclosing-on-banks/

Assessment Update

November 20, 2012

To people who see their HOA assessments as “club dues”–an optional payment they choose to pay or not–the reality can be jarring.  In Idaho, and many other states, the association has a forecloseable lien on each homeowner’s property.  While foreclosing on houses is not profitable right now, it still remains an option for an association with few other enforcement choices.

An association’s lien is usually subordinate to a mortgage.  That means the mortgage would have to be paid first.   But, homeowners who head into a negotiation with an association threatening to foreclose ought to be aware that the HOA has different motivations than a lender.

While a lender may be interested in keeping a person in the home in hopes of future payments, when an HOA finally (and hopefully after many other attempts at enforcement) resorts to foreclosure, it is interested in getting a new owner into the property that can pay his share of the common expenses.  Keeping someone in the house who has proven not capable of meeting those burdens is not a priority, as it might have been for a lending bank.  Of course, other consideration also may come in to play, but it is good to understand these different dynamics.

http://www.firstcoastnews.com/news/local/article/283136/3/Homeowner-may-lose-home-to-delinquent-HOA-fees

Grand Theft HOA: Developer Board President Charged

September 12, 2012

Wow, Florida’s getting an unfair share of  juicy HOA news this week.

This story comes from Central Florida, where apparently people live in nice subdivisions on the everglade swamps between Tampa and Orlando.     

This guy, no Mickey Mouse fraud, was the developer of a homeowners’ association that was not finished before the bust in 2008.  Left an unfinished association and a bunch of empty lots, it appears Mr. Meadows decided to make the most of the situation by “financially exploiting” (per the State Attorney) the homeowners that had already bought in.

Mr. Meadows allegedly set up a rigorous and illegal fine schedule, charging as much as $100 per day for minor infractions.  The association’s funds went to contracted companies that Mr. Meadows owned, and occasionally  to pay unrelated bills like his personal mortgage.  He is charged with misappropriating over $500,000.

Fortunately, the State Attorney’s office got wind of it, and, after four years, has thrown the book at Mr. Meadows.

When a developer controls an Association, either here in Idaho or in Florida, many of the democratic processes and checks-and-balances that normally protect Association Members do not function.  However, owners need to be aware that they still have rights, and that the Association must be run according to state law.  Board members, whether they are elected or not, still owe fiduciary duties to their Association.  They must follow conflict of interest rules, make disclosures, and, at the end of the day, might get dragged off to Court.

Without awareness of homeowner association issues, and with no common interest ownership laws, it would be hard for homeowners to get the attention of prosecuting attorneys here in Idaho.  It would be difficult to find someone like Polk County’s Investigator Stephen R. Menge to dig into the nitty gritty.

Florida Bar To Shine Sunlight On Unlicensed Practice Of Law

September 11, 2012

Lawyers have a monopoly, just like doctors and dentists do.  We go to law school, pass a bar exam, learn and follow professional rules, and get regular training.  In exchange, each state lets lawyers control a monopoly over the practice of law in that state.  But, since we’re lawyers, there’s always argument about what “the practice of law” means, exactly.

In Florida, attorneys are trying to decide where the boundary  is in the field of homeowner association management.  What does “the practice of law” include in this industry?

The line is not always clear.  The Florida Bar has already had a meeting on this question, and is expected to issue an advisory opinion in September addressing  the following actions:

1. Preparation of a Certificate of assessments due once the delinquent account is turned over to the association’s lawyer,

2. Preparation of a Certificate of assessments due once a foreclosure against the unit has commenced,

3. Preparation of Certificate of assessments due once a member disputes in writing to the association the amount alleged as owed,

4. Drafting of amendments (and certificates of amendment that are recorded in the official records) to declaration of covenants, bylaws, and articles of incorporation when such documents are to be voted upon by the members,

5. Determination of number of days to be provided for statutory notice,

6. Modification of limited proxy forms promulgated by the State,

7. Preparation of documents concerning the right of the association to approve new prospective owners,

8. Determination of affirmative votes needed to pass a proposition or amendment to recorded documents,

9. Determination of owners’ votes needed to establish a quorum,

10. Drafting of pre-arbitration demand letters required by 718.1255, Fla. Stat.,

11. Preparation of construction lien documents (e.g. notice of commencement, and lien waivers, etc.),

12. Preparation, review, drafting and/or substantial involvement in the preparation/execution of contracts, including construction contracts, management contracts, cable television contracts, etc.,

13. Identifying, through review of title instruments, the owners to receive pre-lien letters, and

14. Any activity that requires statutory or case law analysis to reach a legal conclusion.

Some of these activities also occur here in Idaho, but many are unique to Florida’s regulatory scheme.   I believe the definition of the practice of law has traditionally been narrower in Idaho.  According to the American Bar Association‘s list of state definitions:

Idaho State Bar v. Villegas, 879 P.2d 1124 (Idaho 1994)
This Court has defined the practice of law as: ‘The doing or performing services in a court of justice, in any matter depending [sic] therein, throughout its various stages, and in conformity with adopted rules of procedure. But in a larger sense, it includes legal advice and counsel, and the preparation of instruments and contracts by which legal rights are secured, although such matter may or may not be depending [sic] in a court.’
Idaho State Bar v. Meservy, 80 Idaho 504, 508, 335 P.2d 62, 65 (1959) (emphasis in original) (quoting In re Matthews, 57 Idaho 75, 83, 62 P.2d 578, 584 (1936)).

Any thoughts out there?

Update: HUD was 1,972 days late?

September 6, 2012

Just a quick update on the HUD duh.  Never an agency to miss a chance at a slam dunk, it appears HUD may have waited 2,072 days–that’s over five and a half years–to file a complaint in the case.  HUD are apparently supposed to act within 100 days.  Thanks  to Tampa Bay Online for the follow-up investigation and video.  www2.tbo.com

 

HUD Duh

September 5, 2012

OK, OK, I know.  Sometimes those fair housing issues are complicated.  Maybe there’s a close call.  Sometimes the HUD case inspectors  seem to have it out for you and the HOA.  But once in a while you just have to wonder what is going on with the American educational system.  Today Tampa area’s Townhomes of Kings Lake  gets the wag of the finger.

Tampa Bay Times

As reported by the Tampa Bay Times, who, as far as I know, has no reason to make a Gibsonton HOA look any dumber than the facts require, this association tried to enforce an occupancy limit and policy on a tenant family of eight, saying they “had too many kids.”  It sounds like the family has other issues going on, but from an HOA best practices point of view, this is not good.   Not good at all.

This is not a hot-button cultural question balancing on the definition of a family.  This is just plain, old, well-settled, illegal discrimination.  Don’t do it.

-J

Foreclosing on the Forecloser: HOAs take on the banks

August 13, 2012

For most homeowners, foreclosure is the end of the story.  The end of a long, painful story, for most.

 

A slideshow on foreclosure and bankruptcy law basics

 

But many homeowner associations could only hope that foreclosure were the end of the story.  For HOAs, foreclosure usually follows a lengthy period of unpaid assessments, collection efforts, and perhaps ongoing maintenance violations.  The foreclosing bank may even have dragged its feet on taking title until it had a post-foreclosure buyer lined up.  I have tried to summarize foreclosure basics for HOAs here.

In Idaho, this tactic leads to increased liability for the original owners of the property, and probably increased chances of bankruptcy.  For the most part, the bank that takes title following a foreclosure is responsible and pays assessments from the date of the foreclosure forward. However, this is not always the case.

In what is often a David and Goliath story, some HOAs are seeking to even the odds by foreclosing against the bank on their post-foreclosure assessments.  This article makes several good points about the pros and cons of this approach, and the position taken by banks.  It applies as well in Idaho as in Florida.

 

Most of the bank in possession has a strong interest in maintaining clear title so that the property can be sold.  Foreclosure, though a drawn-out and relatively expensive process, puts the pressure back on the bank to get current.

Jeremy O. Evans 

 

 

 

 

The Unspoken Rule: Discrimination in Unenforced Covenants

August 9, 2012

Can something discriminatory written and recorded in your Idaho CC&Rs decades ago still pose a liability for your association today?  Today, a blog for the Orlando Sentinel discusses the state of the law in Florida, and recommends a professional review of governing documents to find and remove offending restrictions. Not surprisingly, in Florida’s litigious society, there are municipal and county fair housing regulations.  Florida associations have been found liable for discrimination for “publishing” rules and regulations that caused a tenant “emotional distress,” even where those rules are not enforced.  That 1997 decision is online here.

The question remains how to regard that decision and legal advice here in Idaho, where the legal climate is as different from Florida’s as Idaho’s high desert climate is different from Florida’s coastal humidity.  Certainly the federal fair housing laws still apply, even if we do not see much additional municipal and county fair housing regulations.

Idaho’s Supreme Court found in a 2002 case, D & M Country Estates v. Romreill, that Idaho statutes restricting discrimination in zoning laws do not apply to covenants.   The Court found that because the governing documents in question were specific and unambiguous in limiting housing use to two “families,” the Idaho association was acting within its rights to prohibit use of a house by eight unrelated adults in a group home setting.  Unfortunately, in that case, claims based on the Idaho Human Rights Act were not properly before the Court, and so did not factor into the decision.  Indeed, the Human Rights Commission no doubt would urge Idaho courts to follow the Florida ruling that recorded “published” governing documents indeed can have a discriminatory effect.

In my experience, unenforced clauses in Idaho governing documents have not led to court liability.  However, I have seen such unenforced clauses lead to discrimination charges against associations and their boards.  Even unsuccessful fair housing claims require legal representation and defense.  Rather than face that uncertainty and expense, a preemptive review and amendment of governing documents is still as good an idea here in Idaho as in Florida.  But it may not be the only option.

An option that has not been explored here in Idaho is the use of a recorded cover sheet, as is required in California.  This would involve recording a statement that any discriminatory language in the remaining covenants is to be ignored.  The cover sheet would explicitly void any discriminatory covenants.

Either amending covenants to change language or to add a cover sheet would require the same supermajority vote by the owners.  In Idaho, we have no uniform common interest ownership act to make the process any easier than it sounds.  At the moment, either approach would require legal assistance and membership participation.