The Dirty Deed…In Lieu of Foreclosure

When an owner decides that they simply cannot pay their accrued assessment arrearage, they often take steps to either maximize the amount of time that they can hold on to (ie: live in or rent) their property, or alternatively, may endeavor to quickly hand over the subject property to minimize their personal liability.  With regard to the latter, the delinquent owner may make the association an offer where the owner would agree to deed over the property rather than endure the foreclosure process.  In exchange for this quick turn over of title, referred to as a “deed-in-lieu” (in lieu of foreclosure), the owner usually requests a waiver of personal liability for the accrued debt.  Since foreclosure can be both time-consuming and costly, this is often an attractive option to an association, especially where the unit is in habitable condition and the association can quickly get a renter in place.

It is important, however, that the association do its homework before accepting such a deed.  The reason being that there may be other junior lienholders out there with rightful claims that are secured by the property.  The subject property may have no mortgage on it, leading the association to think that it is getting clear title by accepting a deed-in-lieu, but that is not necessarily true.  The association does get title to the property, but that title is still subject to junior claims that may exist against the property.  For example, if the original owner had work performed by a contractor before deeding the property over to the association and that contractor placed a lien, called a mechanic’s lien, on the property due to nonpayment, the contractor would still have a rightful encumbrance on the property which he or she could foreclose on and in doing so, dispossess the association of the property.  Of course, had the association learned of this encumbrance and foreclosed on its own lien rather than accepting a deed-in-lieu, these types of junior claims would have been wiped out (ie: foreclosed) and the association, if it took title through the foreclosure process, would have obtained clear title rather than what this author calls a “dirty deed.”

The lesson is that the quick and easy option often has hidden pitfalls and it is important that your association consult an attorney to discuss and review these types of decisions before any action is taken.

Daniel Wasserstein

E-mail: danw@wassersteinpa.com

561-416-0170

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Liens are Fine, but Fines are Not Liens

When owners choose to live in a community with an association, they implicitly agree to comply with all of the provisions contained in their association’s governing documents.  In those documents there are almost always restrictions on certain things such as the size and type of pets they are allowed to have, the color of paint they can use for exterior surfaces and even the type of vehicles that can be parked in their driveway.  Break one of these rules by say, parking a semi truck in their driveway, and they should expect to hear about it from their association by way of a violation notice and subsequent fine.

Once a violation has been issued and a resulting fine has been approved, the next obstacle from the association’s standpoint, especially in these challenging economic times, is how to actually collect on the fine.  The question has recently been raised as to whether an association can place a lien on an owner’s property for accrued fines as an association has the ability to do for unpaid assessments.  The simple answer to this inquiry for associations in Florida is generally, no.

Florida Statute 718.303(3), which governs condominium associations sets forth quite concisely that:

  • The association may levy reasonable fines for the failure of the owner of the unit or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may not become a lien against a unit.

Florida Statute 720.305(2) which governs homeowners associations sets forth in relevant part that:

  • The association may levy reasonable fines of up to $100 per violation against any member or any member’s tenant, guest, or invitee for the failure of the owner of the parcel or its occupant, licensee, or invitee to comply with any provision of the declaration, the association bylaws, or reasonable rules of the association. A fine may be levied for each day of a continuing violation, with a single notice and opportunity for hearing, except that the fine may not exceed $1,000 in the aggregate unless otherwise provided in the governing documents. A fine of less than $1,000 may not become a lien against a parcel.

Based on these cited provisions, the only instances where a fine may be able to become a lien is when a homeowners association fine is equal to exactly $1,000 (see additional commentary below) or where a homeowners association’s governing documents specifically provide that fines can exceed $1,000 in the aggregate.  Absent such language, it would be contrary to statute for a condominium association or homeowners association in Florida to lien an owner’s property due to unpaid fines.  So, while liens (for assessments) are fine, fines (for violations) are not liens.

Daniel Wasserstein

E-mail: danw@wassersteinpa.com

561-288-3999

Got Rent? Going After Delinquent Owners’ Rental Income

Its 2012 and for most associations, their biggest challenge this year, as with past years, will be delinquencies in their community and the all-important “accounts receivable” column on their balance sheet.  For many associations, even more irksome than a unit owner continuing to reside in the community without paying assessments is that same delinquent owner renting out their property and deriving income from it.

Fortunately, the Florida legislature recently acknowledged this circumstance and codified amendments to Florida Statutes 718 and 720 (Condo and HOA, respectively, see “Useful Links” tab above) empowering associations to send demand letters to tenants of delinquent owners, requiring that they immediately begin tendering their monthly rent payments directly to the association instead of the owner of the property.  Of course, a key element to the success of this program has been the threat of eviction.  In addition to providing an association with the right to demand rent payments from tenants of delinquent owners, the applicable statutes (specifically, 718.116 and 720.3085) also allow the association to evict those tenants who refuse to comply.  Since the word “eviction” generally strikes fear in the heart of most tenants, especially those who are able to pay their rent and generally like where they reside, it is this attorney’s experience that tenants who receive a demand letter often contact the association very quickly to arrange for the paying of their rent.

The tenant rent demand letter serves as a low cost way to generate an influx of payments which will reduce an association’s assessment arrearages and  accounts receivable.  Because of the low cost and high success rate, it is this attorney’s recommendation that any Florida condominium or homeowners association ensure that their attorney is using this valuable tool on their behalf.

Daniel Wasserstein

E-mail: danw@wassersteinpa.com

561-288-3999

The Magic Words

Photo: The Grand Condominium

“As amended from time to time”

These words may not have quite the same ring as “abra cadabra,” but for condominium associations in Florida their impact might as well be “open sesame.”  In March of 2011, the Supreme Court of Florida issued a ruling in the case of Cohn v. The Grand Condominium Association, Inc., 62 So. 3d 1120 (Fla. 2011) regarding the application of amendments to the Florida Statute 718, more commonly known as the Condominium Act.  The Supreme Court determined that a condominium association is subject to amendments to the Condominium Act that came into existence after the condominium’s inception only if the declaration of condominium states that it is subject to provisions of the Condominium Act/Florida Statue 718, as amended from time to time.  If this specific “as amended from time to time” language is not found in the declaration of condominium, then the provisions of the Condominium Act/Florida Statute 718, as they existed at the time the declaration was recorded, are the statutory authority that govern the association.

In practice, this can have significant ramifications.  For example, say an association is tendered an offer by a developer that would net each owner well in excess of the market value of their units if they agree to terminate the condominium.  Lets assume that this particular association came into existence in the 1970s or 1980s and has a declaration of condominium which lacks the requisite “from time to time” language.  Lets also assume that this declaration, like others from that era, has a provision for termination stating that in order to terminate the condominium, 100% of the owners must consent.  Well, in recent years Florida Statute 718.117 was amended to allow for such an optional termination if only 80% of the owners approve the plan (provided that no more than 10% reject the plan).  While this statutory change serves to significantly lower the voting hurdle for a voluntary termination, our hypothetical association would not be able to rely on it because this amendment came well after the declaration was recorded and the declaration does not have the magic “as amended from time to time” words.

Lesson: Check to make sure your declaration of condominium has the “as amended from time to time” language; it is preferable that your Association be able to change with the times, unless of course you have a particular affinity for bell bottoms, big hair or grunge rock.

Daniel Wasserstein

E-mail: danw@wassersteinpa.com

561-288-3999