The Ticktin Minute April 24, 2017 – Foreclosure Process Pursuant to a HOA Lien for Non-Payment of Condominium Assessments
Condominium Associations run very similar to a business and have two distinctive functions. First, they collect monthly maintenance fees and special assessments and ensure that all unit owners are paying such fees assessed, which are necessary to keep the property in good condition. Second, the Condo Association must ensure that the unit owners and their guests are following the rules and regulations set forth by the Condominium. Such rights are typically listed in the Articles of Incorporation of the Condominium and/or in the Declaration of Condominium, which is recorded in the county where the property is located.
If a unit owner fails to pay any of the fees assessed by the Condominium Board, which may include monthly or quarterly maintenance and/or special assessments, then the Condominium will have a right to foreclose on the subject unit after a specified grace period has passed. Such grace period should be dictated in the Declaration of Condominium or other similar documents that should have been remitted to all new unit owners. The process for foreclosure pursuant to non-payment of Condominium fees is very similar to the process for foreclosure pursuant to a default in the mortgage. The Condominium first files a complaint (Lis Pendens) and summons with the court. They then continue with the typical foreclosure process until they receive a judgment. One easy way to have the Condominium withdraw the complaint is to agree to pay the fees, however, such fees will likely include additional court costs and attorney’s fees incurred by the Association. It’s always a great idea to contact a foreclosure attorney in order to assess the strength of your case and any potential defenses you may have as soon as reasonably possible.
Contact the attorneys of The Ticktin Law Group to assist you with foreclosure defense action and/or any other legal matter you, a friend or a loved one may have. The attorneys of The Ticktin Law Group offer complimentary legal consultations.
Understanding liens from a Homeowners Association (HOA)
Attorney Labeed Choudhry would like to share his understanding of the effects and consequences of a Homeowners Association lien with you. Please click below to watch Labeed’s video.
Are Home Owner Associations bound by the Sunshine Law?
As Florida has developed over the years, so have the number of communities with Home Owner Associations. For those who live in these communities the rules and regulations with an elected board often have the feel of a small governmental system. I frequently hear complaints from both Home Owners, and Board Members regarding violations of the “Sunshine Laws” there is a lot of confusion even among legal authors as to whether the Sunshine Laws apply to Home Owners Association, so the information on the internet is often mixed. What is clear is when you read the Statute the Sunshine Law does not actually apply to home owners associations, and here is why.
§ 286.011 Public meetings and records; public inspection; criminal and civil penalties.—
(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, including meetings with or attended by any person elected to such board or commission, but who has not yet taken office, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.
Florida Statue § 286.011, more commonly known as the “Sunshine Law” only applies to boards or commission of any state agency or of any agency or authority of any county, municipal corporation, or political subdivision. A homeowners association is a private corporation at best and not a state or local governmental agency. Any entirely separate chapter governs home Owner Associations in our laws, Florida Statute Chapter § 720.
At this point, you might be wondering, well how to be keep the information about our Board’s business public, so secret meetings cannot take place. Home Owner Association do have to abide by Florida Statute § 720.303 Association powers and duties; meetings of board; official records; budgets; financial reporting; association funds; recalls.—
(2) BOARD MEETINGS.—
(a) A meeting of the board of directors of an association occurs whenever a quorum of the board gathers to conduct association business. All meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege. The provisions of this subsection shall also apply to the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds and to meetings of any body vested with the power to approve or disapprove architectural decisions with respect to a specific parcel of residential property owned by a member of the community.
(b) Members have the right to attend all meetings of the board. The right to attend such meetings includes the right to speak at such meetings with reference to all designated items. The association may adopt written reasonable rules expanding the right of members to speak and governing the frequency, duration, and other manner of member statements, which rules must be consistent with this paragraph and may include a sign-up sheet for members wishing to speak. Notwithstanding any other law, meetings between the board or a committee and the association’s attorney to discuss proposed or pending litigation or meetings of the board held for the purpose of discussing personnel matters are not required to be open to the members other than directors
A trap many unwary board members fall into is discussing Board or Association business via email. If a quorum of the Board is copied on an email (other than with an attorney for legal advice,) those emails would be in violation of the Florida Statute 720.303. I suggest that a Board, or newly elected Board Members meet with an attorney to review and discuss how they can conduct business within the confines of Chapter 720. The best rule of thumb is keep meetings and communications open and transparent. It is better to err on the side of caution than to be caught in a recall because unhappy homeowners feel left out.