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Condo and HOA Lien Foreclosures…A National Shame by Axela Technologies

Condo and HOA Lien Foreclosures…A National Shame by Axela Technologies

  • Posted: Mar 09, 2021
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Condo and HOA Lien Foreclosures…A National Shame

by Axela Technologies

 

How many times have you read a story about an HOA foreclosing on some unfortunate family for a fraction of the value of the home? For example, the veteran who, upon returning from active duty, finds that his HOA has foreclosed and taken title to his house for a mere pittance? “Soldier in Iraq Loses Home Over $800 Debt” reads the story, and life goes on at the HOA.

Should the HOA have foreclosed on this person’s house? Why did they foreclose on this property? What could have been done to prevent this gross injustice from happening in the first place? Condo and HOA lien foreclosures should not be the first go-to solution when a unit becomes delinquent.

For too long, community associations have been a national disgrace, rather than a source of national pride. No HOA wants their name to be mentioned on the nightly news because we all know it is far more likely to be an exposé than a feel-good piece. But if we want the bad press to stop, we need to take a good, hard look in the mirror.

 

Communities Often Jump Straight to the Nuclear Option of Lien Foreclosure. Can They Do That?

When you buy a house or condo in a community association, most likely you’ve taken out a mortgage, and if you don’t pay your mortgage, the lender has the right to foreclose and force a public sale of the property. So too can condominiums and homeowner’s associations foreclose on your property for non-payment of maintenance fees.

In fact, per most state laws, your homeowner’s association or condominium association can potentially foreclose on your property even if you are current with your mortgage. Also, your mortgage will remain in first position and the HOA cannot sell the property with marketable title unless the first position lien has been satisfied.

All that is required is for the association to cause an attorney to file a lien, have the attorney send a notice of foreclosure, have your day in court, and before you know it you are being evicted from your home that may have equity in it because you were delinquent for a much smaller amount than what the property is worth. Not a good deal for you and certainly not a smart business move for the association.

It’s not to say that the community is in the wrong. The assessment fees are rightfully owed to the association, and they have the right to attempt to collect it. However, jumping to the nuclear option prior to attempting diplomacy (negotiating with the owner to satisfy the debt) never goes well for anyone.

Quote-lein foreclosure bid shocked the conscience of the court x800

Winrose vs Hale ‘Shocked the Conscience’ of the Court

In an appeals court decision in Supreme Court South Carolina, the association foreclosure was REVERSED and REMANDED. In the case of WINROSE HOA v. DEVERY HALE the court was shocked by this action and even stated so in their decision: “As a result, in determining whether the purchase price was grossly inadequate …. the bid shocks the conscience of the court.” The story is quite simple and may sound familiar to you as this happens every day and really should not.

The Hales were solid citizens who purchased their home twenty-one years ago for $104,250.00 and paid their mortgage and fees on time. The home is valued at $128,000.00 and the property has $60,000.00 of equity in it. After missing a $250.00 maintenance fee payment the HOA foreclosed on their $566.41 lien (to satisfy delinquent assessments and interest) and the winning bid on the house was $3,036.00. The Hales had been robbed, and the association had acted too rashly in moving to foreclose upon a house for such a pittance. The buyer was Regime Solutions, LLC who are investors that seek out and purchase properties at foreclosures.

Due to the Hales failure to file a responsive pleading to the foreclosure complaint, a huge mistake on their part, they were ultimately defaulted and were not served with any further court papers. In fact, they did not even receive a copy of the judgment of foreclosure. When they found out they were at risk of losing their property, they tried to make good to redeem their house and paid a bill to the master and in fact, the law firm representing the HOA sent the Hales a notice that the lien had been satisfied. The HOA, however, did not withdraw its suit.

Three months after, the HOA filed the affidavit of default and the master authorized a judicial sale of the property at public auction. The Hales were not notified of this order due to a rule in South Carolina, which essentially states the time to appeal doesn’t change, despite lack of notice (rule 77(d), SCRCP). Two weeks later without notice to the Hales, the property was sold and the new owner moved to evict them. This of course led to court complaints, a trial, and finally an appeal before the Supreme Court who reversed and remanded the foreclosure order saying that the sale at auction for $3,036.00 “shocked the conscience of the court,” which is quite strong language from the Supreme Court.

 

Quote-Lien Foreclosure Is a Last Resort x800

Investors Use Shady Business Practices To Take Advantage of Unsuspecting Homeowners through HOA foreclosures

It came to light that Regime’s business model was not to assume the senior mortgage to own the property but to give back the property to the original owners at a hefty fee. (Sadly, this is not an uncommon practice.)

The court decision went on to say: “While the HOA had the legal right to pursue collection of the debt owed, including foreclosure of the Property to satisfy that debt, this foreclosure action quickly morphed into a proxy to capitalize on a small debt. We are especially troubled by Regime’s participation in a foreclosure proceeding to accommodate its business model of leveraging a nominal debt to secure an exorbitant return from homeowners who fear the prospect of eviction.”

Most important the court stated: “Regime would not have had an opportunity to engage in its questionable business practices had the HOA and its attorney not chosen to pursue foreclosure in the first place. The Hales were minimally in arrears on their HOA dues, yet the HOA foreclosed on a $128,000 home in its eagerness to collect the outstanding $250—an overdue amount less than 0.2% of the fair market value of the home, notwithstanding the amount of the outstanding mortgage.”

Finally, the court opined: “A foreclosure proceeding is a last resort, not a business model to be swiftly invoked for the purpose of exploiting property owners. We do not countenance the improper use of foreclosure proceedings by the HOA, its attorney, or Regime.”

Justice ultimately prevailed in this case, and the Hales kept their house and were not evicted although there can be no doubt that they had suffered and worried throughout this entire process. Not every homeowner who goes through this process is so lucky to get away with only a terrible story to tell.

 

Quote-HOA Lawyer enforcing security interests is not a debt collector x800

Communities Are Getting Bad Advice, and It’s Costing Them, in Real Dollars and in Reputation

What went wrong is an amazingly simple question to answer. The association was convinced that they should foreclose on a delinquent unit before they even tried to engage the owners to review the consequences of their situation. While it may be true that they received one notice, they were advised by an attorney that the matter had been resolved. This was a total failure of communication.

The association could have had more contact with the owners and advised them as to the course of action that was being taken against them. Nobody said anything to them – and in this industry, such a thing is not uncommon.

When a delinquent unit goes over to an attorney the object is to “enforce the security interest” and not to collect. The association’s board was not properly informed that less drastic action could be taken. Somehow the board was convinced not to recover money from the Hales but rather to take the property.

No collections activity is reported in the narrative that is presented in the case. It was a bad business decision because eventually, the association had to pay a lot of legal fees. This situation could have been resolved much more easily and cost-effectively.

A Lawyer Who is Just Enforcing Security Interests Is Not A Debt Collector

This matter did not have to be resolved by a “legal solution” but rather by a “collections solution.” As a matter of fact, in a case decided by the Supreme Court of The United States, DENNIS OBDUSKEY v. McCARTHY & HOLTHUS LLP the Court held, “A business engaged in no more than the enforcement of security interests is not a “debt collector” under the FDCPA, 1032*1032 except for the limited purpose of § 1692f(6). Pp. 1035-1040. This means that the association did not even try to collect the past due debt and if they used an attorney, he/she is not even bound by the Fair Debt Collections Practices Act.

The Supreme Court in South Carolina in all its wisdom said loud and clear: “A foreclosure proceeding is a last resort”

 

HOAs and condo associations should collect, not foreclose

Community Associations Have a Better Option to Collect Delinquent Fees

So how should a community association collect delinquent fees? In a way this question just about answers itself. The answer is that they use a collection agency that is specialized in collections for community associations. Community Associations need to COLLECT, not foreclose and evict owners from their homes. Associations need to have adequate cash flows and a minimum amount of legal cases.

Axela Technologies would be honored to be that company for your community association. We are a licensed collection agency and we only work on delinquencies from Condos and HOAs. We are different because our objective is not to foreclose on a house, which is the action of last resort.

What Axela does is engage the owner and work with them to pay their past due assessments. Axela will send demand letters, provide internet portals to delinquent owners, make outbound calls, report delinquencies to credit bureaus, receive inbound calls, work out payment plans, and notice mortgage holders that the borrower is delinquent on their maintenance fee payments as per the PUD Rider.

Now is the time for your community association management company and/or community association to put the right process into place when you are confronted with delinquencies. Foreclosing and evicting does not have to be the way. Click here to request your free, no-obligation collections analysis today.

 

 

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GET BOARD CERTIFIED AND FULFILL YOUR 2021 LEGAL UPDATE CREDITS!  March 18th – 6:00 p.m.

GET BOARD CERTIFIED AND FULFILL YOUR 2021 LEGAL UPDATE CREDITS! March 18th – 6:00 p.m.

  • Posted: Mar 09, 2021
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GET BOARD CERTIFIED AND FULFILL YOUR 2021 LEGAL UPDATE CREDITS!

March 18th – 6:00 p.m.

 

GUEST SPEAKERS:
C.P.A. MARC GERSTLE
INSURANCE EXPERT: GREG WALTZ
L.C.A.M.: RAFAEL AQUINO
Managers: Our Course is now approved for Three 2021 Legal Update Credits.
Course Number: 9630640
CONDO AND HOA EDUCATION IS BACK! GET BOARD CERTIFIED FROM THE COMFORT OF YOUR OWN HOME.
REMEMBER, IF YOU DON’T GET CERTIFIED WITHIN 90 DAYS OF GETTING ON THE BOARD – YOU ARE OFF THE BOARD.
GET CERTIFIED BY TAKING OUR ON-LINE CLASS. WE HAVE CERTIFIED OVER 20,000 FLORIDIANS ALL ACROSS THE STATE. LEARN ALL ABOUT CERTIFICATION, THE AS AMENDED FROM TIME TO TIME LANGUAGE, BUDGETS, RESERVES, FLORIDA’S NEW EMOTIONAL SUPPORT ANIMAL LAWS, MANAGER DO’S AND DON’TS, SCREENING AND APPROVING, ACCESS TO RECORDS AND MUCH MUCH MORE.
NEXT CLASS:
MARCH 18th, 6:00 P.M.
TO REGISTER: CLICK HERE:
OR CALL OUR OFFICE AT: 954-983-1112
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Robert Kaye is back live, this evening at 6pm Eastern on ‘Ask the Experts’. Call in with your community association-related questions during the show!

Robert Kaye is back live, this evening at 6pm Eastern on ‘Ask the Experts’. Call in with your community association-related questions during the show!

  • Posted: Mar 04, 2021
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Robert Kaye is back live, this evening at 6pm Eastern on ‘Ask the Experts’. Call in with your community association-related questions during the show!

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Comprehensive Lake & Pond Assessments Understand Your Waterbody Inside and Out

Comprehensive Lake & Pond Assessments Understand Your Waterbody Inside and Out

  • Posted: Mar 04, 2021
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Understand Your Waterbody Inside and Out

by SOLitude Lake Management

 

Lake and pond management is a complex field that presents never-ending puzzles and surprising challenges. Like a fingerprint, no two bodies of water are exactly the same—and they are always in a state of continuous change based on how the water is used, the surroundings, and even the weather. When diagnosing and designing a solution for a problem like bad odors or nuisance algae growth, professionals take all of this information into account, but it doesn’t provide a complete picture of what’s going on below the surface.

A professional assessment is the first step to achieve a comprehensive view of your waterbody’s health. Think of this as a physical for your waterbody. An array of scientific tests are conducted to check its vitals and establish an initial baseline of health. Over time, the comprehensive scientific data can be used to:

  • Identify root causes of recurring issues
  • Predict and prevent the onset of future water quality problems
  • Make better informed proactive management decisions
  • Achieve more impactful and long-lasting results
  • Reduce your environmental footprint and cut management costs

 

SOLitude offers a variety of waterbody assessment options. Each package includes creation of a customized, comprehensive report for you and your stakeholders. Your freshwater management professional can help you determine which package is most appropriate based on the history of the waterbody, as well as your unique goals and budget:

Premium Waterbody Assessment

Gain invaluable insights into the health and longevity of your freshwater resource. Leverage new algae identification methods and advanced laboratory work to predict and circumvent water quality problems while cutting down on long-term costs.

Enhanced Waterbody Assessment

Dive into the unique characteristics of your lake or pond. This essential data can be used to identify underlying problems and tap in to the specific needs of your waterbody with custom solutions.

Water Wellness Check

Gain a baseline understanding of what’s happening below the surface of your waterbody. This key information will help put you on the right path towards the achievement of your lake or pond goals.

Waterbody Testing Add-ons

Additional water quality tests are available to further customize any of our three assessment packages. Ask your Aquatic Specialist is these tests should be considered for your waterbody.

Additional water quality tests include:
Apparent Color, Chloride, Chlorophyll-a, Conductivity, Particulate Organic Matter, Phosphate, Salinity, Sediment Organic Matter, Total Dissolved Solids, Total Hardness, Total Iron, Total Suspended Solids, True Color and Turbidity.

 

Click to learn more about SOLitude’s Commitment to Management of your Waterbodys, Lakes and Ponds.

One of the nation’s premiere lake maintenance companies, SOLitude Lake Management helps our customers identify their needs and formulate comprehensive plans to achieve practical solutions to their water quality problems. Water features are a particularly important part of any property, adding value and aesthetic beauty. We offer the most technologically advanced lake or pond management products and services available to help all of our customers prevent problems and maintain a natural, healthy, balanced and beautiful ecosystem. For those prospective clients whose lake or pond is already experiencing problems, our pond management experts will restore it to its original beauty and help achieve aquatic sustainability.

SOLitude’s annual management services include:

 

SOLitude Lake Management

SOLitude Lake Management
P: 888.480.5253 | F: 888.358.0088
Alyssa Serignese
3842 Ironbridge Blvd. Unit #2
Fort Myers, FL 33916

 

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“Why Are These Plants Behind My House?” by Allstate Resource Management

“Why Are These Plants Behind My House?” by Allstate Resource Management

  • Posted: Mar 01, 2021
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“Why Are These Plants Behind My House?”

by Allstate Resource Management

Many homeowners in South Florida have properties that are adjacent to mitigation areas but very few have an understanding as to what they are or why they are there.  This article will answer some of these questions and give you a better understanding about the role mitigation sites play in your community.

Homeowners have all sorts of names for the planted areas by their homes.  Some call them preserves, some call them swamps, some call them natural areas but they all share a common origin and purpose.  Whether they are full of trees or stretches of plants along a lake shoreline, they are all what are known as mitigation.  Mitigation is an attempt to lessen or alleviate the environmental impact of development and construction in our area.  When a developer plans to build a community the location must first be surveyed to determine if important natural resources and sensitive areas will be disturbed due to the project.  Before any construction can begin, the developer must submit a plan to create and maintain areas that will replace what is lost when the development is built.  Once the plan is approved, a permit is issued for the mitigation and the project can begin.  Without the mitigation, your neighborhood could not even exist.  When the builder turns the property over to a homeowners association, the association then assumes the responsibility for the mitigation and its care.

There are three basic kinds of mitigation areas: wetland preserves, upland preserves and littoral zones.  Wetland preserves are lower lying areas that are partly to completely flooded most of the year and are largely comprised of aquatic plants and grasses, and may have tree islands or deep water pools.  Upland preserves are wooded areas that sit at higher elevations and tend to have drier soils and are usually comprised of more trees and shrubs.  Littoral zones are submersed shelves that run around the perimeter of lakes and are planted with a variety of plants that can grow in flooded conditions.

Quarterly inspections and status reports are required by the agency that issued the mitigation permit for your community.  These are to ensure that the site lives up to its required environmental obligation and that it complies with agency standards.  Regular maintenance visits, by trained and licensed personnel, are necessary to keep mitigation areas in compliance.  In order to be in compliance the areas must be covered by the proper percentage of beneficial, native plants and be within the acceptable limit of invasive, exotic plants.

Mitigation sites are designed to replace a natural ecosystem and are not meant to be perfectly manicured landscapes.  Homeowners should never take it upon themselves to remove plants, trim or cut plants or add plants to mitigation areas.  Remember, these areas are permitted and unapproved alterations could result in complications or fines, just like any other permit you have when you do work on your house.  Homeowners should also be sure that their landscapers do not dump debris such as palm fronds, hedge trimmings and grass clippings into the mitigation by their homes.  All mitigation is monitored for compliance.  When the standards set by the oversight agency are not met, the entity responsible for the upkeep of the site may be financially liable to bring the site back into compliance.

Many homeowners don’t realize the benefits of these re-created natural areas.  They see them as a burden with no redeeming qualities but there are several that are commonly overlooked.  These areas provide habitat to several native species, some of which are threatened or even endangered.  In addition to habitat for animals mitigation provides a pathway to replenish the aquifers that supply the drinking water here in South Florida.  As more and more development occurs, we are essentially “capping” our water supply’s recharge mechanism with concrete and asphalt.  Increased population creates increased demand for water.  At the same time our system’s ability to provide the needed water is being reduced.  Wetlands and preserves act like a sponge to capture water that would normally be lost to storm drains and funnels it into our depleted aquifers.  This sponge affect also aids in flood prevention.  Wetlands can hold a considerable amount of storm flow and alleviate your community’s storm water drainage system.  Littoral plantings around your lake also help absorb nutrient runoff.  Florida lawns don’t get green by themselves.  We use a lot of fertilizer and when the rains come and the grounds get soaked, some of that fertilizer ends up in our lakes.  This then feeds algae in the lakes and creates those unpleasant mats of floating, green algae around the water body.  The bands of wetland plants around the shoreline act as a buffer and absorb some of the nutrient runoff as it enters the water.

Our staff at Allstate realizes that your mitigation maintenance is an important responsibility.  We hope that this has shed some light on the questions you may have.  One of our goals in our pledge to service to you is educating the homeowners and helping everyone understand the value of the aquatic resources within your community.  If we can provide any further guidance or assistance please feel free to call our office.

 

By: Stephen Montgomery

Allstate Resource Management

6900 SW 21st Court, Building #9

Davie, Florida 33317

Phone: (954) 382-9766

Fax: (954) 382-9770

 

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Community Update: February Wrap Up – Florida Condo & HOA Law Blog

Community Update: February Wrap Up – Florida Condo & HOA Law Blog

  • Posted: Mar 01, 2021
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Spring is just around the corner and sprucing up is often top of mind. Whether that means improving yards, documents, or relationships, this edition of Becker’s Community Update offers practical guidance on how to move forward. Check out the hot topics below, and don’t forget to connect with us on Facebook to get real time updates on these issues and more!

by Becker / Florida Condo & HOA Law Blog

While Mother Nature may be hard to harness, community associations are often tasked with doing just that to protect both residents and property. In Responsibility for Tree Branches and Roots Elizabeth Lanham-Patrie explores how the law decides who needs to tackle this chore.

In the second part of our two part series Amending Governing Documents, Jay Roberts outlines best practices for getting proposed changes approved by membership.

Maritrini Soto Garcia discusses presidential power in Does a Community Association Board President Have Executive Action Authority or Unilateral Powers?, and reminds everyone that the work of a community association is, ultimately, a group effort.

Assessments are not the most popular feature of a community association, but they are a vital resource in maintaining the amenities and ambiance to which the community has grown accustomed. In THIS CASE: Abbey Park Homeowners Association, Inc. v. Bowen, Rob Caves reviews how the Florida court decided the seminal case regarding an owner’s right to withhold payment of an assessment.

 

If you have new members on your board or a new manager for your community and want them to be part of our Community Update, have them subscribe here:

 


 

Amending Governing Documents Part II – How?

By: Jay Roberts, Esq.

In Part I of this two-part series, we discussed the importance of amending governing documents. Part II discusses tips on how a board of directors can put itself in the best position to have the proposed amendments approved by the membership.

START EARLY:

Work with the association’s counsel to craft the language appropriate for the amendments well before you plan to present it to the membership formally.

Click here to read more!

Does a Community Association Board President Have Executive Action Authority or Unilateral Powers?

By: Maritrini Soto Garcia, Esq.

Community associations are not administered by a single director or officer of the board, instead, the affairs of such associations are administered by its board. The articles of incorporation and/or bylaws of an association most often specify the required minimum number of board members. In the condominium context, the Florida Condominium Act provides that in the absence of such specification, the board of administration must be composed of five members (or three members in condominiums with five or fewer units).

Click here to read more!

Abbey Park Homeowners Association, Inc. v. Bowen,

508 So.2d 554 (Fla. 4th DCA 1987)

By: Rob Caves, Esq.

Assessments paid by owners are the lifeblood of any community association and efforts to collect assessments are the most consequential and common legal proceedings any association engages in. Typically, there are few valid defenses an owner can raise to challenge the collection of properly adopted assessments. One common defense that is attempted is that the association is failing to properly maintain the common elements of a condominium or the common areas of a homeowners’ association.

The seminal case on the issue of whether owners can withhold the payment of assessments due to the association’s failure to properly maintain the common elements is Abbey Park Homeowners Association, Inc. v. Bowen, 508 So.2d 554 (Fla. 4th DCA 1987). In the case, the appellate court held that the failure to maintain the common elements is not an affirmative defense to the association’s action to foreclose on the unit for the failure to pay assessments. Accordingly, a claim by an owner that the association is improperly maintaining the condominium property would not be a valid defense to the association’s action to collect unpaid assessments or enforce the association’s assessment lien against a unit.

However, there are subsequent cases that hold that while such claims are not affirmative defenses to a foreclosure action by an association, they could constitute counterclaims and entitle the owner to a “set-off” if they were to prove that the association failed to properly maintain the condominium property and such failure resulted in damage to the unit owner or their property. See Qualcom Corp. v. Global Commerce Center Association, Inc., 59 So. 3d 347 (Fla. 4th DCA 2011) (holding that the owner was able to argue at trial that its damages from a roof leak, if proven, could be a “set-off” against the outstanding assessments). However, the facts which would entitle an owner to a set-off would be very specific and would not apply to an owner’s general allegation that the common elements, or common areas, were not being maintained, as was alleged in Abbey Park.

Accordingly, pursuant to the legal principles outlined in the Abbey Park case, the fact that an owner alleges that the association is not properly maintaining the common property, or operating the association, would not be a defense against the association’s action to collect properly levied assessments.

 


 

CALLING ALL BOARD MEMBERS AND COMMUNITY MANAGERS

As a service to the community and industry, we are pleased to offer some of our most popular classes online! While our in-person classes remain suspended until further notice due to COVID-19, we are thrilled to bring you the following classes to participate in from the comfort of your own home.

HOA/Condo Board Member Certification

VIEW ALL CLASSES

 

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GOVERNOR DESANTIS EXTENDS STATE OF EMERGENCY FOR ANOTHER 60 DAYS ON FEBRUARY 26TH, 2021

GOVERNOR DESANTIS EXTENDS STATE OF EMERGENCY FOR ANOTHER 60 DAYS ON FEBRUARY 26TH, 2021

  • Posted: Mar 01, 2021
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As a result of this Order, Emergency Powers of the Boards of Directors for community associations remain in effect for another 60 days.

Read the Entire Emergency Order Here

 

 

 

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HOW DO YOU PROTECT YOUR RIGHT TO VOTE IF YOU LIVE OUT OF THE STATE OR COUNTRY? By Eric Glazer, Esq.

HOW DO YOU PROTECT YOUR RIGHT TO VOTE IF YOU LIVE OUT OF THE STATE OR COUNTRY? By Eric Glazer, Esq.

  • Posted: Mar 01, 2021
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LOTS OF COMPLAINTS THIS YEAR ABOUT PEOPLE NOT GETTING THE CHANCE TO VOTE BECAUSE THE MAIL IS SLOW. HOW DO YOU PROTECT YOUR RIGHT TO VOTE IF YOU LIVE OUT OF THE STATE OR COUNTRY?

By Eric Glazer, Esq.

This year I am hearing the following complaint more than ever before: I live out of the state, or out of the country and I never received a ballot to vote in the election.

A little over a year ago I was involved in a case where many owners who lived in Finland did not get their ballots timely.  Instead of having their vote not count, someone who lived in the condominium e-mailed them the ballot.  These owners then took that ballot, placed it in a ballot envelope, placed that ballot envelope in another envelope and signed the exterior, and mailed it back to the association usually by overnight mail.  Some owners didn’t bother to use the interior ballot envelope.

The association didn’t want to count these votes.  The association also didn’t want to count the votes of owners who had their ballot envelopes dropped off by a neighbor, claiming that this was voting by proxy.

Read the attached opinion to find out how the arbitrator ruled.  It makes for interesting reading.  The bottom line…….if you’re out of town…..have the ballot e-mailed to you.

To read the case, click here.

 

About HOA & Condo Blog

Eric Glazer graduated from the University of Miami School of Law in 1992 after receiving a B.A. from NYU. He has practiced community association law for more than 2

decades and is the owner of Glazer and Sachs, P.A. a seven attorney law firm with offices in Fort Lauderdale and Orlando and satellite offices in Naples, Fort Myers and Tampa.

Since 2009, Eric has been the host of Condo Craze and HOAs, a weekly one hour radio show that airs at noon each Sunday on 850 WFTL.

See: www.condocrazeandhoas.com

He is the first attorney in the State of Florida that designed a course that certifies condominium residents as eligible to serve on a condominium Board of Directors and has now certified more than 10,000 Floridians all across the state. He is certified as a Circuit Court Mediator by The Florida Supreme Court and has mediated dozens of disputes between associations and unit owners. Eric also devotes significant time to advancing legislation in the best interest of Florida community association members.

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A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

  • Posted: Feb 26, 2021
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A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan. 

 

For years there have been significant legal constraints on a condominium association’s ability to use reserve funds. In addition to the statutory requirement to obtain membership approval for non-designated reserve usage, the prevailing school of thought was that association funds could not be invested since investments can and do fail.

A newly filed bill by Senator Jason Pizzo, SB 1490, could create a significant change in terms of an association’s ability to invest the community’s operating and reserve funds in depositories other than a traditional bank or savings and loan.

The bill provides as follows:

“Unless otherwise prohibited in the declaration, and in accordance with s. 718.112(2)(f), an association, including a multicondominium association, may invest any funds in one or any combination of investment products described in this subsection.”

If this bill passes and an association invests funds in any type of investment product other than a depository account, the association must meet all of the following requirements:

  1. The board shall annually develop and adopt a written investment policy statement and select an investment adviser who is registered under s. 517.12, F.S. and who is not related by affinity or consanguinity to any board member or unit owner. Any investment fees and commissions may be paid from the invested reserve funds or operating funds.
  2. The investment adviser selected by the board shall invest any funds not deposited into a depository account in compliance with the prudent investor rule in s. 518.11, F.S. It is important to note that the statutory prudent investor rule is a test of conduct and not resulting performance. Under this statute, no specific investment or course of action is, taken alone, considered prudent or imprudent. Instead, the investment adviser is deemed to be acting as a fiduciary and he or she may invest in every kind of property and type of investment, subject to that statute. The fiduciary’s investment decisions are evaluated on the basis of whether he or she exercised reasonable business judgment regarding the anticipated effect on the investment portfolio as a whole under the facts and circumstances prevailing at the time of the decision or action. Although the proposed statute requires that funds invested be subject to insurance under the Securities Investor Protection Corporation, it is important to note that this insurance is only there if the brokerage firm fails, not if the investment turns out to be ill-advised and loses the association’s money.
  3. The investment adviser shall act as a fiduciary to the association in compliance with the standards set forth in the Employee Retirement Income Security Act of 1974 at 29 U.S.C. s. 1104(a)(1)(A)-(C).
  4. At least once each calendar year, the association shall provide the investment adviser with the association’s investment policy statement, the most recent reserve study report or a good faith estimate disclosing the annual amount of reserve funds which would be necessary for the association to fully fund reserves for each reserve item, and the financial reports.
  5. The investment adviser shall annually review these documents and provide the association with a portfolio allocation model that is suitably structured to match projected reserve fund and liability liquidity requirements. There must be at least thirty-six (36) months of projected reserves in cash or cash equivalents available to the association at all times.
  6. Portfolios managed by the investment adviser may contain any type of investment necessary to meet the objectives in the investment policy statement; however, portfolios may not contain stocks, securities, or other obligations that the State Board of Administration is prohibited from investing in under ss. 215.471, 215.4725, and 215.473, F.S. or that state agencies are prohibited from investing in under s. 215.472.

Lastly, the bill would exempt registered investment advisors from having their bids subjected to the competitive bidding requirements found in Section 718.3026, F.S.  The companion bill to SB 1490 is HB 1005 (Killebrew/Fine).

As more associations change their old habits and begin to fund reserves, the allure of more aggressive investment vehicles for these funds, which can be substantial amounts, is undeniable. However, the risk is also undeniable. As such, if this bill becomes law and the investment of reserves becomes available, boards are strongly encouraged to take an extremely cautious, measured approach with reserves.

While investment of your association’s operating and reserve funds might result in a substantially better return than a savings account, you might also see significant losses. The investment of association funds must be done with careful consideration of the demographic in your community, the age of your buildings and facilities, the required liquidity of your funds and, most importantly, the sensitivities and risk tolerance of your membership all taken into account. If your members fuss about your board’s landscaping decisions imagine the potential fallout if you make the wrong investment decisions!

 


Very truly yours,

Donna DiMaggio Berger, Founder & Executive Director
Community Association Leadership Lobby
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NEW Video Section: CONDO AND HOA VIDEO’S & COURSES on sfpma

NEW Video Section: CONDO AND HOA VIDEO’S & COURSES on sfpma

  • Posted: Feb 25, 2021
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CONDO AND HOA VIDEO’S & COURSES

Educational Videos & Webinar Presentations

Videos and Webinar presentations offered to Clients that work and live in Condo, HOA’s and the Management Industry. Learn at your own pace, some of the presentations provide course certificates of completion while others offer you the ability to learn valuable lessons on the many questions you may have for your Condo and HOA.  Below you can find videos on; Legal and Legislative presentations, Q & A for Condo and HOA, Collections, Accounting and Taxes, Education and Licensing, Become a CAM and many more….

 

Educational Providers: Florida Member Companies with The State of Florida Property Management Association.

In our efforts to bring educational courses to our industry in a safe way, Our Members provide many courses online through Zoom and Video presentations. Take advantage of these online Courses many are approved by the State of Florida where after watching, joining and taking part in will give you credits and certifications for the Courses. These lively, interactive and informational Video courses are approved for board member certification and property manager continuing education credits. (ECU Credits) some are held in a Video setting while others are online through Zoom and other platforms. SFPMA is happy to bring to you these Educational Resources for you to take part in.

View and Learn through Videos & Courses offered to Condo & HOA Board Members throughout the State of Florida. 

View our YouTube Channel and keep up to date with Members, Courses, and Learn through the Great Videos for our industry!

 

 

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Legal Morsel | Court Concludes That Mistakes on a Claim of Lien Does Not Invalidate the Claim by BY ROBERT KAYE, ESQ., B.C.S

Legal Morsel | Court Concludes That Mistakes on a Claim of Lien Does Not Invalidate the Claim by BY ROBERT KAYE, ESQ., B.C.S

  • Posted: Feb 22, 2021
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Legal Morsel | Court Concludes That Mistakes on a Claim of Lien Does Not Invalidate the Claim

by BY ROBERT KAYE, ESQ., B.C.S

The Florida Fourth District Court of Appeal recently provided a ruling regarding the ability of a homeowner’s association to successfully complete a foreclosure for unpaid assessments when there was an error in the amount indicated as being owed on the claim of lien.  In the case of Pash v. Mahogany Way Homeowners Association, Inc., Case No. 4D19-3367, January 27, 2021, the Appellate Court was faced with the challenge of a lower court ruling in favor of the homeowner’s association in which the homeowner, Mr. Pash, had claimed that the amount indicated on the claim of lien was overstated from what was owed.  The record also reflected that the homeowner’s association admitted that it made a mistake in its calculation of the assessments on the lien but corrected the amount when it filed the foreclosure case.  It was not disputed that some assessments were delinquent when the foreclosure case began.

In a split decision, a majority of the Court focused on the requirements of Section 720.3085(1)(a) of Florida Statutes, as well as the provisions of the Declaration of Covenants for the Community.  The Statute provides the following:

To be valid, a claim of lien must state the description of the parcel, the name of the record owner, the name and address of the association, the assessment amount due, and the due date.  The claim of lien secures all unpaid assessments that are due and that may accrue subsequent to the recording of the claim of lien and before entry of a certificate of title, as well as interest, late charges, and reasonable costs and attorney fees incurred by the association incident to the collection process.  The person making payment is entitled to a satisfaction of the lien upon payment in full.

While the case was reversed for other reasons, the majority of the Court stated that “Nothing in section 720.3085(1)(a) suggests that the claim [of lien] must be free of error for it to serve as an otherwise valid claim of lien.”  The Court also concluded that the statute, as written, does not provide that an error in the amount stated in the claim of lien invalidates an otherwise valid claim by an association.  Rather, the Court indicated that the association is merely asserting “a claim” in the lien and the association remains obligated to prove its claim in order to prevail in its case and homeowners have the ability to contest the claim made.

The Florida Condominium Act contains substantially the same provision as set forth above in Section 718,116(5)(b) F.S.  Consequently, it is anticipated that a lower court would likely apply the conclusions of this case to a condominium association foreclosure case.

It remains to be seen whether this holding is going to be viewed as an anomaly or will be followed by the remaining District Courts in Florida.  Notwithstanding this easing of the perception of association requirements on this point, it remains the recommendation that all collection efforts by associations be fully documented to a “zero” balance on the specific homeowner account to minimize any possible adverse conclusion in an assessment foreclosure case.  Legal counsel familiar with community association law should be involved to assist in the formal collection efforts against any homeowner.

 

 

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