Q: The trees grow on my property and the branches cross the property line and are uncomfortably close to his roof. What does Florida law say about his situation?
A: It is likely that this issue will be covered by the Landmark case of Gallo v. Heller which has recently been upheld in 2010 in Scott v. McCarty. The basic rule of these cases is that the tree owner is not liable for nuisance caused by the trees to neighbors, but neighbors can trim any branches and roots back to the property line.
The purchaser at the HOA foreclosure, provided the foreclosure was properly performed and after issuance of the certificate of title in their name, should now own the subject property subject to any superior interests, many times the first mortgage. The pending bank foreclosure does not effect this right in relation to your ability to remain in the property.
That being said, the owner is offering the option of staying in the property at an undisclosed rental amount. This is not something they are required to do but rather something they offering in the alternative to removal from the premises. The time limit is not appropriate however. The appropriate action the purchaser must take is called a writ of possession. Such action occurs within the Court System and culminates with the Sheriff providing you notice and a time frame to vacate.
If you are a tenant rather than the owner pursuant to the qualifications of the Federal Protecting Tenants in Foreclosure Act, additional time is mandated by law.
If the property is vacant, do I have to wait for the certificate of title before I can open the door? After all, I already paid the final amount owed with the wining bid.
In Florida the title transfers upon the filing and issuance of the certificate of title. Despite having paid good and valuable consideration for the unit, you are not the owner until the certificate of title is issued in your name. Also there is a right of redemption period in Florida prior to the issuance of the certificate of title during which the original own can redeem his property.
Q: We bought our Florida property several years ago and weekly renting is allowed.
Many owners are now retiring and would like to move the minimum period to perhaps a month, and perhaps eventually eliminate short term renting altogether. They were happy to use the facility to help buy their property but now want to prevent others!
Financially this would impact on many owners.
If a change did occur would it only effect new buyers/investors due to the grandfathering rights?
A: Without a review of the proposed amendment and the terms of your Declaration and the pertinent documents of your community is impossible to answer the question with whole certainty. However, there are many cases wherein owners are grandfathered in to prior iterations of the declaration’s rules. Unfortunately, this grandfathering is usually on a per issue basis. For example, if your community allowed rental of units and then decided to not allow any rentals whatsoever, you and your tenants would likely be grandfathered in for the term of your leasehold and any extensions of the same.
Your situation sounds like a seasonal rental situation, wherein, each new visitor creates a new rental agreement. It is less likely that the grandfather scenario that would be of most benefit to you will occur in this situation due to the novel lease for each new renter.
On to what you can do. Consider having a skilled attorney in your area review the rules and covenants of the Association to determine the exact requirements to push through this type of amendment. If a quorum and majority vote is required, a good bet, then the community as a whole should be able to prevent its passage if it effects as many owners as you believe it does.
I received the Certificate of Sale, then Certificate of Title. I have now received an invoice for $18,000 in past dues for the last 4 years. Is this legal?
This is a frequent issue in foreclosure situations where the buyer is saddled with “buyer beware” or taking the property “as is”. There are a handful of arguments which may be made, although their efficacy is fact specific.
You should consider having an attorney review the Final Judgment of foreclosure entered in the case as well as having said attorney review the specific amounts being requested by the Association to ensure that the amounts may be recovered against the previous parcel owner as well as yourself and are not simply being “piled on”.
The relevant statute is 720.3085 (2)(b):
(b) A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments that came due up to the time of transfer of title. This liability is without prejudice to any right the present parcel owner may have to recover any amounts paid by the present owner from the previous owner.
We live in a condo community in Florida. We have five owners not paying their HOA fees. Can we evict them?
Florida Statute provides that Associations can file a claim of lien for delinquent assessments under Section 718.116 (condos) and 720.3085 (HOAs). The applicable statutes further provide that the claim of lien, if prepared properly, can be foreclosed on in the same manner as a bank holding a mortgage forecloses on the property. (provided certain criteria is first followed)
To remove the owner of a unit or lot after a foreclosure the proper action is obtaining a “writ of possession”. This document, entered by the Court, removes the former owner from the property so that the new owner, as determined by a foreclosure sale, can enter the premises.
The condominium’s Declaration of Condominium may contradict the statute and provide for lesser means of recovery or action than is provided by in the statute. You should consult with an attorney in your area as corporations are not allowed to proceed without an attorney in an Association Foreclosure actions such as this.
Does the Florida HOA have the right to change the locks on an occupied unit they foreclosed on without informing the tenant?
Provided the leasehold is still in effect or was at the time of foreclosure, it is possible the Florida HOA has run afoul of several aspects in the Federal “Protecting Tenants in Foreclosure Act”. This act sets forth the manner in which tenants are treated and dealt with during and after a Florida HOA foreclosure on the property.
The act applies to all residential foreclosures, not just bank foreclosures. One additional consideration is that the lease must be “bona fide”. Bona Fide leases are defenied under the “Act” as one of three types:
(1) the mortgagor or the child, spouse, or parent of the mortgagor under the contract is not the tenant;
(2) the lease or tenancy was the result of an arms-length transaction; and
(3) the lease or tenancy requires the receipt of rent that is not substantially less than fair market rent for the property or the unit’s rent is reduced or subsidized due to a Federal, State, or local subsidy
Florida Homeowner’s Associations have dealt with the issue of payment of delinquent assessments after foreclosure for some time. This issue is so prevalent in fact that Florida Statute address the issue in detail. Due to the substantial amounts involved in a prolonged foreclosure action, it is important for Associations to know what they may and may not recover. Furthermore, the recent filing of suits against Associations attempting to over reach in their recovery adds further weight to the need for awareness. This article will discuss the most common ways in which properties are transferred as a foreclosure proceeds and what can be recovered by the Homeowners Association.
The Short Sale:
When a property is in foreclosure the owner may attempt to sell the property to an interested third party. However, with a foreclosure ongoing, it is necessary to first consult with the bank and obtain “short sale approval”, with a specified price the bank is willing to accept. Upon conclusion of the short sale, the new owner of the home becomes responsible for the entirety of the delinquent assessments, interest, late fees, costs and attorneys fees incurred by the Association in pursuit of recovering its assessments.
The reason for this is because of the language in Florida Statute 720.3085(2)(b). The statute states:
A parcel owner is jointly and severally liable with the previous parcel owner for all unpaid assessments that came due up to the time of transfer of title. This liability is without prejudice to any right the present parcel owner may have to recover any amounts paid by the present owner from the previous owner.
This paragraph simply means that the new owner steps into the shoes of the old owner and is responsible to the same degree as the previous owner. If the Association is not adequately paid off at the time of short sale, the Association can then seek to recover all amounts due from the new owner.
The Bank Takes Title:
When the property concludes its foreclosure action and the foreclosure bank takes title at the foreclosure sale by outbidding all other bidders, the title transfers to the bank. This is one of the few situations where the Association’s usually superior interest in the property is undercut. The statutes specifically limits the recovery of Associations through a “safe harbor provision” in the statute.
Florida Statute 720.3085(2)(c) states:
… the liability of a first mortgagee, or its successor or assignee as a subsequent holder of the first mortgage who acquires title to a parcel by foreclosure or by deed in lieu of foreclosure for the unpaid assessments that became due before the mortgagee’s acquisition of title, shall be the lesser of:
1. The parcel’s unpaid common expenses and regular periodic or special assessments that accrued or came due during the 12 months immediately preceding the acquisition of title and for which payment in full has not been received by the association; or
2. One percent of the original mortgage debt.
These limitations on recovery for the Association mean that even under the best conditions, the Association will only be able to recover 12 months or 1% of the delinquent assessment owed on the property, whichever is less. Furthermore, the Association may not recover costs, late fees, interest or attorney’s fees as they are wiped out by the bank.
The bank may go beyond this statute and raise Appellate case law which, upon looking at the Association’s Governing Language, may reduce the amount the bank owes the Association to 0. These are very serious issues that should be discussed with your HOA Attorney to determine what position the Association will take when a bank purchases at foreclosure sale.
Third Party Purchaser:
Occasionally, a third party will throw their hat into the ring and purchase a property at the bank’s foreclosure sale. This is less frequent recently given the volume of foreclosure but still occurs every so often.
The third party purchaser find him or herself in the same unenviable position as the short sale purchaser. As the new owner of the property, the third party purchaser becomes responsible for the entirety of delinquent assessments, interest, late fees, costs and attorneys fees incurred by the Association.
This is often a surprise to the third party purchaser, especially if the Association has not secured its interest with a claim of lien. However, the Association need not be concerned regarding arguments as to a claim of lien as the Association’s interest in the property is secured by its governing documents.
Suffice to say, whenever there is a third party purchaser the Association should make every effort to collect all that is owed to it.
The most important thing to take away from this article and from any foreclosure sale is the same, as much delinquent assessments as possible. A dedicated homeowner’s Association attorney can help do just that. Consider Association Assessment Attorneys, PA, www.AssociationAssessmentAttorneys.com for the task.
For Associations who have not been brought into the current foreclosure crisis, and even for those who have, the service of a bank foreclosure Complaint, (the document that starts a foreclosure action in Court) can be a troubling, scary and confusing event. Usually the foreclosing party will serve the registered agent of the Association as listed on Sunbiz.org. Occasionally, the foreclosing party will serve members of the board of directors, their family members, the Association’s attorney, non-homeowners, mail men and the occasional doormat.
Service by any person other than the registered agent of the Association should generally not be accepted. There are strategic exceptions to this which are outside the scope of this article.
So your Association has been served:
Step 1: After confirming that you have indeed received a foreclosure complaint, the process-server is supposed to advise you what they are handing to you, immediately fax and if possible email the complaint to your attorney/legal adviser.
Step 2: Always follow-up with a call to your attorney/legal adviser to confirm receipt of the Complaint. The reason for this follow-up call is two-fold.
First, it is imperative that the Complaint be received and reviewed as soon after service as possible. Florida has a 20 day time frame for answering foreclosure Complaints. If a responsive document or extension is not done within that time frame, the bank may default the Association. This can result in the Association not being able to request the maximum amount of delinquent assessments at the end of the foreclosure. Additionally, the Association will be unable to move forward with motions to compel or motions to dismiss should the foreclosure stall.
Second, you can then discuss the strategy on how to respond to the foreclosure. There are many different reasons to avoid filing a simple answer to complaint.
For Example: Is the Association foreclosing itself? If so perhaps it would be more favorable to Association to make the bank prove its foreclosure by aggressively responding to the Complaint.
Is the bank attempting to overstep the provisions of Florida Statute 720.3085 or 718.116? If so, a simple answer may trap the Association into a certain recovery at the end of the foreclosure.
Step 3: Schedule a follow-up for 20 days from the date of the foreclosure to confirm that action has been taken.
If valid service occurred on August 31, 2011. The Association has until September 20, 2011 to respond. The date of service does not count. Weekends do.
Step 4: Expect and request monthly updates regarding the status of the foreclosure.
Foreclosure actions have taken several years to conclude given the volume and skill with which they are being worked by the bank. If a short sale or bankruptcy comes into play, years spent waiting can cause serious difficulty for the Association. If more than 3 months pass without significant progress, consider inquiring whether a motion to compel or call to the bank is appropriate.